Digests

Inmate Welfare Committee, William Head Institution v. Canada (Attorney General)

T-1725-02

2003 FC 870, Tremblay-Lamer J.

4/7/03

9 pp.

Judicial review of decision of Commissioner of Corrections, Correctional Service of Canada, (Commissioner) dated September 3, 2002 authorizing amendment to Commissioner's Directive (CD) 803, Consent to Health Services Assessment, Treatment and Release of Information--CD 803, s. 2(b) providing consent of offender must be obtained for all mental health procedures, including psychiatric and psychological assessment and treatment--Amendment (s. 3) providing risk assessment can be done notwithstanding offender's refusal-- Applicant arguing risk assessments cannot be done without offender's consent--Change to CD 803 strips away inmate's consent rights, as they pertain to psychological testing and assessments--Applicant submits amendment contrary to common law principles, and violates Charter of Rights and Freedoms, s. 7 and Canadian Bill of Rights, s. 1(a)-- Commissioner has authority to make and implement rules, pursuant to Corrections and Conditional Release Act, s. 97, and to designate as Commissioner's Directives any of these rules pursuant to Act, s. 98--Protection of society paramount concern in corrections process pursuant to s. 4(a)--One way to achieve objective through risk assessments --Distinction between medical and psychological assessments done for benefit of offender or to establish diagnosis, and risk assessments done for protection of public--On one hand, Correctional Services of Canada (CSC) has obligation to administer health care for benefit of inmates--On other hand, CSC has legislative mandate to assess risk in order to protect public--Risk assessments do not require informed consent-- In summary, risk assessments not health care, treatment, or psychological assessments conducted in order to establish diagnosis or to ascertain whether offender requires health care treatment--Risk assessments tool to determine offender's likelihood of recidivism and potential danger to offender, other inmates, staff members and public--Impossible to fulfill mandate if offender's consent required prior to risk being assessed as consent could often be withheld--Within jurisdiction of Commissioner to make such amendment in order to allow CSC to fulfill legislative mandate of protecting public--With regard to applicant's constitutional challenge, applicant has not challenged validity of any disposition of Act--Therefore, argument without merit--Finally, applicant seeks order of mandamus, directing CSC to cease using non-Ph.D psychologists and staff to conduct PCL-R assessments, contrary to Dr. Hare's cited protocols and stated criteria-- Always better to follow guidelines as established by Dr. Hare when conducting PCL-R assessments--However, given fact person with Master's degree eligible for registration to provide psychological services in British Columbia, such person has qualifications necessary to conduct PCL-R assessments--Judicial review dismissed--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]--Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 1--Corrections and Conditional Release Act, 1992, c. 20, ss. 4, 97, 98.