90. Grievance procedure - There shall be a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).

91. Access to grievance procedure - Every offender shall have complete access to the offender grievance procedure without negative consequences.

[1992, c. 20, s. 91; 1995, c. 42, s. 22(F).]

Corresponding Regulations: Sections 74-82 Offender Grievance Procedure

Fitzgerald v. Canada (Correctional Service) - [1990] B.C.J. No.2873 (B.C.S.C.), 1990 CanLII 1499 (BC S.C.)

- It was no answer that the petitioner has a right under the directives to grieve an adverse decision. If the original decision is flawed by a breach of the rules of natural justice, his remedy should lie with the Court.

Lee v. Canada (Correctional Service) - (1994), 24 Admin. L.R. (2d) 205, 33 C.R. (4th) 328, 80 F.T.R. 90, [1994] F.C.J. No.889 (F.C.T.D.)

- This was a case where the CSC transferred an inmate a second time for the underlying alleged event after the first transfer decision was quashed. Since the original transfer decision was considered, and upheld, by the Commissioner's rejection of the applicant's third and final grievance of that decision, the court held that permitting the Deputy Commissioner to now make a decision on the second attempt to transfer creates a reasonable apprehension of bias. This is so because there is serious doubt that a subordinate can approach the question of altering his superior's prior decision with the objectivity and independence that is required for a fair decision. Furthermore, subsection 81(1) of the Regulations was not followed as the inmate's third level grievance was dealt with after the application for judicial review had been filed. It was argued that subsection 81(1) was designed to prevent what happened in this case from occurring. The court expressed the view that the decisions should be quashed based on the non-compliance with the Regulations, subsection 81(1), and the existence of a reasonable apprehension of bias. The application was allowed and the decision to transfer quashed.

Johnston c. Centre régional de réception - [1995] R.J.Q. 3000, A.Q. No.1414 (Que.S.C.)

- In this case, the inmate had not exhausted the internal grievance procedure prior to seeking judicial review. The approach taken, as a whole, by the judges of the Quebec Superior Court is not to intervene when the initial remedies have not been exhausted unless there is some flagrant departure form or breach of an applicant's constitutional rights. In agreeing to hear the application, the court noted that the question raised was constitutional in nature, was a serious question and that in some respects there was no precedent regarding it. Furthermore, the alternative remedy might not make settlement possible and may have the effect of delaying the outcome of the case.

Doran v. Canada (Correctional Services) - (1996), 108 F.T.R. 93, [1996] F.C.J. No.304 (F.C.T.D.)

- The CSC maintained that since the inmate applicants did not use the Offender Grievance Procedure provided for under the Regulations, but instead chose to seek judicial review in this court, they should not be entitled to the extraordinary remedies which they sought when another procedure for dealing with their grievances was available. That procedure exists under sections 74 to 82 of the Regulations. The court noted that under those Regulations, s81 contemplates the possibility of applying for a legal remedy at the same time as the grievance procedure is pursued and it suspends the latter process until the former process is completed or abandoned. For the court, it clearly contemplates legal proceedings at the option of the person with a grievance. In the court's opinion, the matter here in issue, i.e., the lawful authority of the respondent Commissioner, is ultimately determinable by the process here instituted, an application for judicial review. In this circumstance, failure to follow an internal grievance process ought not to preclude the exercise of discretion to grant relief here sought.

Dégarie v. Canada - (1997), 141 F.T.R. 142, [1997] F.C.J. No.947 (F.C.T.D.)

- The CSC transferred the inmate from one specific segregation unit to another within the same penitentiary. The only difference between the two units was the level of contact with the regular population, with the inmate moving involuntarily to the more 'restrictive' unit. The inmate applied for judicial review while several grievances had reached the third level and had not yet been disposed of. Although internal remedies had not been exhausted, the court heard the application and ultimately dismissed it. The court asserted that it need not express an opinion concerning the grievances that were pending during trial.

Fortin v. Donnacona Institution - (1997), 153 F.T.R. 84, [1997] F.C.J. No.138 (F.C.T.D.)

- It is well settled that in principle an individual must exhaust alternate or internal remedies before applying to the Court for a prerogative writ to issue. There are, however, exceptions. It was suggested that where there is a flagrant breach of natural justice and where the internal statutory remedy is inadequate, then an application for judicial review should be allowed without prior exhaustion of those alternate remedies.

Giesbrecht v. Canada - (1998), 10 Admin. L.R. (3d) 246, 148 F.T.R. 81, [1998] F.C.J. No. 621 (F.C.T.D)

- In refusing to hear G's application for judicial review, the Court held that on its face, the legislative scheme providing for grievances is an adequate alternate remedy to judicial review. Judicial review is a discretionary remedy and the court cannot be precluded from determining that an adequate alternate remedy exists simply because an applicant has filed a judicial review application. Section 81(1) of the Regulations is not intended to detract from the court's discretion in this respect. Moreover, s81(1) does not act as a bar to the grievance proceeding should the court find that procedure to be an adequate alternative remedy and thereby dismissing the judicial review application.

Forrest v. Canada (Solicitor General) - (1998), 154 F.T.R. 22, [1998] F.C.J. No.1483 (F.C.T.D.)

- F did not avail himself of the opportunity to file a grievance regarding the denial of his request for a voluntary transfer from a higher security to a lesser security institution. As a consequence, the application for judicial review of the denial to allow the voluntary transfer was premature.

Miller v. Canada - [1999] F.C.J. No.477 (F.C.T.D.), 1999 CanLII 7943 (F.C.)

- A dispute arose between the applicant inmate and the CSC as to the number of hours that the inmate worked each day with regards to his institutional employment program. Complaints filed to the supervisor of his unit, as per section 74 of the Regulations were rejected. The inmate then turned to the grievance process but all three applications were denied. The Level 3 Grievance, decided by the Acting Assistant Commissioner, is the conclusion of the inmate grievance system and was the decision for which the inmate sought review. The applicant submitted that the official conducting the Level 3 grievance failed in his duty to act fairly. In particular, the applicant claimed that the official fettered his discretion in relying too heavily on the decisions at the earlier stages of the grievance process. In the applicant's view, the Acting Assistant Commissioner did not perform an impartial or unbiased review of the record before him. The applicant also submitted that he was denied natural justice and procedural fairness at the Level 2 grievance when that grievance officer contacted the Program Co-ordinator at the institution to obtain a job description for his position. The applicant was not told of this communication, nor was he given an opportunity to respond to a job description that he felt was inaccurate. Finally, the applicant submitted that the Level 3 grievance decision was based on errors of fact. The court ultimately agreed with the position of the CSC, who argued that the Level 3 grievance officer made a reasonable decision supported by the evidence, acted in accordance with the principles of natural justice and procedural fairness, and complied with all the statutory requirements. In particular, the Acting Assistant Commissioner did not err in considering the previous grievance related decisions, since section 82 of the Regulations places a statutory duty upon him to take into consideration any efforts on the part of staff and the offender to resolve the issue, including any recommendations resulting there from. The court also agreed with the CSC's view that the applicant's allegations of a breach of natural justice were no longer relevant since the applicant was given an opportunity to submit new information at the Level 3 grievance and could have raised this issue in relation to the Level 2 decision at that time. The application for judicial review was denied.

Sweet v. Canada - (1999), 249 N.R. 17, [1999] F.C.J. No.1539 (F.C.A.), 1999 CanLII 8927 (F.C.A.)

- Counsel for the CSC argued that the appellant inmate ought to have exhausted the appeal process provided by section 80 of the Regulations before attacking the practice or policy of double-bunking. The court responded that it was not for certain that the constitutional validity of the practice or policy could have been ruled upon in the grievance process. What the appellant was attacking was not so much the decision of the CSC to force him to share a cell, as much as the policy of double bunking in it-self. The thrust of the appellant's argument is that the policy of double bunking, which affects the appellant and many other inmates, should be declared invalid. That policy is an on-going one that may be challenged at any time. Judicial review, with the associated remedies of declaratory, prerogative and injunctive relief, was the proper way to bring that challenge to this Court.

Bordage v. Archambault Institution - (2000), 204 F.T.R. 133, [2000] F.C.J. No.1976 (F.C.T.D.)

- In support of his argument that the inmate's application for judicial review should be dismissed on the ground that he did not make use of the grievance system, the Attorney General of Canada cited the judgment of Giesbrecht v. Canada, [1998] F.C.J. No. 621, Anderson v. Canada (Armed Forces), [1997] 1 F.C. 273 (C.A.), and St-Amand v. Canada (Attorney General) (2000), 147 C.C.C. (3d) 48 (Que.C.A.). The inmate applicant cited Marachelian v. Canada (Attorney General), [2000] F.C.J. No.1128 (F.C.T.D.) and the comments of Arbour J. in her report of the Commission of Inquiry Into Certain Events Occurring at the Prison for Women in Kingston. The court noted that Marachelian endorsed the rule that other remedies should be exhausted but made an exception that did not apply in this case. Further, the court noted that in her inquiry report Arbour J. warned that she did not have sufficient information to formulate comments on the grievance resolution procedure and grievances in the Correctional Service in general. Giesbrecht and St-Amand held that the grievance system laid down in the Act, the Regulations, CD No. 540 and the SOPs are an adequate statutory procedure which must be exhausted before initiating an application for judicial review when the question is one relating to a security rating or placement. The court found that the circumstances in St-Amand were identical to those of the case at bar and came to the conclusion that the application for judicial review must be dismissed because it did not comply with the rule that other remedies must be exhausted.

Marachelian v. Canada (Attorney General) - (2000), 1 F.C. 17, 187 F.T.R. 238, [2000] F.C.J. No.1128 (F.C.T.D.)

- The court 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.

Ross v. Canada - [2000] F.C.J. No.1711 (F.C.T.D.)

- These reasons arose from a motion in writing to strike out the action of a Federal prison inmate, serving his sentence in a medium security institution, a proceeding that the defendant submitted ought to be by way of an application for judicial review. In the Statement of Claim the plaintiff referred to past wrongful conviction, present wrongful conviction, transfers between institutions which are said to have put him at danger and then goes on to seek $100,000 in damages for failure to provide needed educational programs, a writ of mandamus to remove points which the plaintiff says were unfairly added to his security classification scale and an order transferring him to a minimum security facility. The court was in agreement with the defendant that this proceeding ought to have progressed through the Grievance and Review System set out in the appropriate legislation and that if the plaintiff were then dissatisfied he might bring a judicial review application under section 18.1 of the Federal Court Act. In this way the plaintiff might have dealt with transfers among institutions, transfers with which he disagrees. By that procedure he could have obtained at least an initial review of the extra penalty points which the plaintiff says were added to his docket, thus limiting his access to a minimum-security facility. However it was certainly not up to the court, in this case, to determine the institution in which the plaintiff ought to serve his sentence. That is the purpose of the process set out in the CCRA, and particularly as set out sections 28, 29, 90 and 91 of that Act and in sections 11 through 16 and 74 through 82 of the Regulations. The court affirmed that these are internal procedures that should be exhausted, except in special circumstances, for example where internal procedures would not afford any real remedy. An inmate must follow such procedures before he or she becomes eligible for the review procedure offered by the Federal Court. In this case there were no special circumstances set out in the plaintiff's material that might provide an exception to this general rule.

St-Amand v. Canada (Attorney General) - (2000), 147 C.C.C. (3d) 48 (Que.C.A.) (French version)

- This was a case where the applicant did not avail himself of the internal grievance procedure before applying for habeas corpus. As opposed to other extraordinary remedies, habeas corpus is remedy as of right once evidence has led the Court to conclude that the applicant has been illegally deprived of his liberty. Yet, even if the remedy of habeas corpus is not discretionary, it will nevertheless be refused if the applicant has not exhausted all his avenues of appeal. In the same manner, habeas corpus may not be used redundantly with the system of judicial review. However, the enactment of the Charter has had the effect of expanding the scope of habeas corpus. The Supreme Court of Canada has ruled that the rules of common law governing habeas corpus motions should be applied in a flexible manner if the applicant has demonstrated that continued detention breaches the principles of fundamental justice recognized under the Charter. The possibility of recourse to habeas corpus as a remedy under paragraph 24(1) of the Charter thus allows the Courts a wider latitude when the application is truly of a constitutional nature. As the record did not disclose any extraordinary circumstances allowing for the conclusion that the statutory procedure was not appropriate and that the requirements of fundamental justice required immediate recourse to habeas corpus, it was not appropriate to apply the wider scope of review by way of writ of habeas corpus in this case.

Tehrankari v. Canada (Correctional Service) - (2000), 188 F.T.R. 206, 38 C.R. (5th) 43, [2000] F.C.J. No.495 (F.C.T.D.)

- The decision sought to be reviewed here was made by the Commissioner of the CSC at the final grievance level prescribed by section 90 of the Act and sections 74 to 80 of the Corrections and Conditional Release Regulations. The court referred to Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, where the Supreme Court of Canada enumerated the four factors to be examined to assess the standard of review on these questions. The first factor to be examined is the presence or absence of a privative clause in the Act. The court pointed to the fact that there is no privative clause contained in the Act insulating the decisions of the Commissioner taken in the grievance process.

Mennes v. McClung - (2001), 2001 FCT 1349, [2001] F.C.J. No.1830 (F.C.T.D.)

- In a case where a third level grievance decision was rendered by the Acting Assistant Commissioner, it was claimed by the inmate applicant that subsections 80(2) and 80(3) of the Regulations state that the Commissioner of Corrections, rather than the Acting Assistant Commissioner, should have been the one to hear his appeal. The applicant relied upon subsections 80(2) and 80(3) of the Regulations and the long established rule of delegatus non potest delegare as a principle of interpretation or statutory construction. The respondent, however, asserted that at each level of the applicant's grievance the appropriate party designated under the Act and the Regulations reviewed the decision. Sections 75-82 of the Regulations provide for the grievance process and there is clearly no requirement under the Act or the Regulations for the Commissioner of Corrections, to individually or directly review complaints at the third level appeal or at any other level. In addition, it would be impractical for the Commissioner of Corrections to have to review all the grievances made by every inmate in the country, at each level of appeal. The court was of the view that the resolution to this issue is found in several sources: section 97 of the Act, section 98 of the Act, Commissioner's Directive Number 081 dated June 22, 1998 entitled Offender Complaints and Grievances (CD 081), and lastly subsection 2(2) of the Act - the French version of this latter provision being more instructive than the English version. Ultimately, the court held that the Acting Assistant Commissioner held the proper authority by virtue of the aforementioned sources in rendering the final decision within the grievance process under subsections 80(2) and 80(3) of the Regulations. The Commissioner of Corrections appropriately delegated to the Acting Assistant Commissioner the determination of the outcome of the applicant's final grievance.

Pinkney v. Canada (Correctional Service) - (2001), 2001 FCT 1053, [2001] F.C.J. No.1464 (F.C.T.D.)

- If an inmate takes issue with the provision of information by the Correctional Service of Canada then by law he must use the grievance procedure provided in the CCRA and Regulations that set out an adequate alternative remedy that must be pursued prior to seeking judicial review. On that score, as in previous decisions of this Court on such issues, the applicant, once again, has failed to avail himself of the adequate alternative remedies and, consequently, this prong of his application must be dismissed.