Hiebert v. Canada ( Acting/Assistant Commissioner, Corporate Development, Correctional Service )
T-559-98
Pelletier J.
15/12/99
14 pp.
Applicant inmate of federal institution-Request for transfer denied on basis of "incompatibles" in population of facility to which seeking transfer-Grievance of refusal denied-During judicial review application, seeking list of incompatibles, reasons for current status as incompatibles, dates, methods whereby status of incompatibility reviewed-Affidavit in reply suggesting requested documents non-existent-Respondents also filing certificate invoking Canada Evidence Act, s. 37, Corrections and Conditional Release Act, s. 27(3)(a),(b), together allowing documents to be withheld from production if release would jeopardize safety of individual or security of penitentiary-Court thus having before it request for production of documents not existing in form in which requested, which were not before decision maker, and refusal to produce existing documents, which were before decision maker-Federal Court Rules, 1998, rr. 317, 318 governing-Order made pursuant to r. 318 setting down for hearing before judge question of production of documents-Only documents actually before decision maker subject to production-Documents sought to have produced here not only not before decision maker, but no evidence existing in form requested-Rules not permitting party to ask tribunal to prepare new documents or to do research in existing documents, any more than permit party to obtain from tribunal existing documents in no way related to impugned decision: Quebec Port Terminals Inc. v. Canada (Labour Relations Board) (1993), 164 N.R. 60 (F.C.A.)-Absent evidence of existence of documents, and in presence of evidence no such documents before decision maker, no basis to make order requested-As to applicant's implied concern refusal of transfer result of bad faith, evidence showing rational basis for position taken by respondent-As to documents before decision maker, but whose production resisted on ground production would endanger safety of individuals, security of penitentiary, test not whether good grounds for withholding information but whether enough information revealed to allow person concerned to answer case against him: Demaria v. Regional Classification Board, [1987] 1 F.C. 74 (C.A.)-In some instances inmate might only be entitled to gist of information against him, eg. where disclosure would automatically lead to identification of informers-Issue herein status of certain individuals as incompatibles vis-à-vis applicant-No small thing to be considered incompatible of individual convicted of killing two other inmates-Particularly uncomfortable to be identified as person whose incompatibility foiled applicant's return to Pacific Region-Impossible to discuss incompatibles without endangering them-Whatever said about them conveying more than those who would do them harm need to know-Applicant given gist of case against transfer-To say more to get into discussion about specific incompatibles, exposing them to risk-Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.) adopting two-stage approach to resolution of claims for non-disclosure-In first stage Court considering competing claims for disclosure, non-disclosure on basis of affidavit evidence before it-Only if cannot resolve issue at that stage does Court advance to second stage: review of documents-As decision herein based upon nature of inquiry itself, i.e. inquiry into identity of incompatibles, unnecessary to examine documents-But documents examined to deal with issue of bad faith-Important to balance very broad protection from disclosure in such cases with some objective assessment power thereby conferred upon Corrections officials exercised for intended purpose-Involving nothing more than assessment of whether rational basis for position taken by Corrections authorities-Not for Court to attempt to make risk assessments-As material disclosing rational connection to stated objective, no more need be done-Federal Court Rules, 1998, SOR/98-106, rr. 317, 318-Canada Evidence Act, R.S.C., 1985, c. C-5, s. 37-Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 27(3)(a),(b).