PENITENTIARIES |
Canada (Attorney General) v. Canada (Human Rights Commission)
T-1718-01, T-2034-01
2003 FCT 89, Layden-Stevenson J.
30/1/03
27 pp.
Policies of Correctional Service of Canada (CSC) regarding transsexual inmates--Applications for judicial review with respect to policy regarding sex reassignment surgery and concerning policy regarding placement of pre-operative transsexual inmates--Both applications in relation to decision of Canadian Human Rights Tribunal (Tribunal) declaring policies discriminatory, ordering CSC to formulate new policies--Tribunal determined CSC had not justified policy with respect to placement of transsexual inmates because policy failed to recognize special vulnerability of pre- operative transsexual inmate population--Whether Tribunal erred by relying on impressionistic evidence in reaching conclusion male to female pre-operative transsexual inmates cannot be placed in female institutions--Evidence not impressionistic--No fixed rule with respect to nature, sufficiency of evidence justifying discriminatory practice-- Application for judicial review of placement decision brought by Canadian Human Rights Commission dismissed-- Regarding Attorney General's application for judicial review concerning CSC policy with respect to access to sex reassignment surgery, applicant argued Tribunal exceeded jurisdiction by finding sex assignment surgery within definition of "essential health services" under Corrections and Conditional Release Act (CCRA) and policy--In addressing issue, Tribunal did adhere to provisions of CCRA--Essential care provided to inmates pursuant to s. 86(1) of CCRA-- Provision mandatory--If sex reassignment surgery determined to be essential, s. 86(1) applies--Precisely determination made by Tribunal--Finding of Tribunal not constituting excess of jurisdiction--Application for judicial review dismissed-- Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 86(1).