PENITENTIARIES |
Sweet v. Canada (Attorney General)
T-700-01
2003 FC 1438, Layden-Stevenson J.
10/12/03
20 pp.
Judicial review of decision of delegate of Commissioner of Corrections (Commissioner) in third-level grievance that applicant's transfer involuntary--Applicant inmate of Warkworth Penitentiary--Transferred to Kingston Penitentiary for treatment but discharged before program began when another inmate complained about his behaviour-- Decision at issue based on finding not granted opportunity to respond to decision to discharge him--Ordered assessment be provided to applicant, but found decision justified--First, Commissioner's statement transfer involuntary incorrect because discharge not involuntary transfer, but return from temporary, and voluntary, absence from parent institution-- Transfers, governed by Corrections and Conditional Release Act, s. 29, apply to situations where envisioned inmate will be housed permanently in parent institution until released or transferred again--Involuntary transfer type of such transfer --Second, as to whether remedy violated principles of natural justice, if transfer properly characterized as involuntary, affirmation of decision vitiates that finding--Denies inmate very right to which Commissioner states should be entitled, to respond to reasons for involuntary transfer--That response cannot be meaningfully considered if Commissioner has already decided transfer justified--In either case, matter should be remitted to Commissioner for redetermination-- Third, given conclusion assignment to treatment temporary absence, and not involuntary transfer, request to quash involuntary transfer denied--As no evidence re: availability of treatment programs, little purpose in quashing transfer decision--Applicant assured by Correctional Service of Canada (CSC) officials that free to apply for future treatment --Such assurances indicating no need to intervene to grant remedy already offered by CSC in reasonable, meaningful way--Further, request for injunction with respect to discharge impossible to grant, as discharge already occurred--Finally, in so far as request for damages concerned, damages cannot be awarded on judicial review application under Federal Courts Act (Act), s. 18.1(3)--Applicant asked application for damages be allowed to proceed as action under Act, s. 18.4(2) --While possible to convert judicial review into action, here, not appropriate to do so--Conversion into action would be premature in view of conclusion Commissioner must redetermine third-level grievance--Application allowed-- Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 29 (as am. by S.C. 1995, c. 42, s. 11)--Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 118.1(3) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27), 18.4(2) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28).