PENITENTIARIES |
Sweet v. Canada (Attorney General)
A-8-04
2005 FCA 51, Malone J.A.
7/2/05
17 pp.
Appeal from Federal Court (F.C.) decision ((2003), 244 F.T.R. 285) concluding appellant's discharge from Regional Treatment Centre (RTC), transportation back to Warkworth Penitentiary (home institution) not involuntary transfer-- Appellant, repeat sex offender, entered 30-week treatment program at RTC--While at RTC, found to have breached behavioural expectations set out in treatment contract-- Appellant discharged, ordered transferred back to Warkworth without having had opportunity to respond to discharge decision--Appellant arguing involuntary transfer from RTC without any opportunity to make representations, contrary to Corrections and Conditional Release Regulations, s. 12-- Commissioner's delegate determining transfer involuntary but justified--F.C. finding no transfer in case at bar as transfers only applying to situations where inmate expected to be permanently housed in new parent institution, remitting matter back to Commissioner--Appeal dismissed--Appellant's initial move from Warkworth to RTC was transfer within meaning of Corrections and Conditional Release Act, s. 29, but as that transfer voluntary, Regulations, s. 12 not applicable --Nothing in Act, Regulations suggesting s. 29 transfer must be permanent in nature--Here, discharge decision "returning" rather than "transferring" appellant back to Warkworth-- Return contemplated in initial voluntary transfer, discharge simply expediting that return--Purposive, contextual analysis of Act, Regulations supporting that conclusion-- Characterizing return of inmate following treatment as transfer would frustrate functioning of treatment facilities as inmate could refuse return to institution, thus preventing prompt return (because Regulations, s. 12 would come into play)--Prompt return required to ensure safe, efficient functioning of treatment facilities--Regulations, s. 12 thus cannot apply--As to procedural fairness, issue here whether appellant given opportunity to respond to allegations prior to discharge decision--Applying factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, requisite level of procedural fairness owed to appellant relatively low--Providing appellant with opportunity to respond to allegations against him during investigation into incident and to make further representations by way of grievance process meeting duty of fairness-- Corrections and Conditional Release Regulations, SOR/92-620, s. 12--Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 29 (as am. by S.C. 1995, c. 42, s. 11).