Araya v. Canada (Attorney General)

Araya v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-12-13
Neutral citation
2023 FC 1688
File numbers
T-261-22
Decision Content
Date: 20231213
Docket: T-261-22
Citation: 2023 FC 1688
Ottawa, Ontario, December 13, 2023
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN:
ABEL ARAYA
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
ORDER AND REASONS
I. Overview [1] Abel Araya is a Canadian citizen of Eritrean descent. In June 2019, he pleaded guilty to trafficking narcotics and was sentenced to three years’ imprisonment. He was incarcerated at two federal penitentiaries operated by the Correctional Service of Canada [CSC]: Drumheller Institution in Alberta and William Head Institution in British Columbia. He was released on March 12, 2020.
[2] Mr. Araya identifies as Black. In a case study included in its Annual Report for 2013, the Office of the Correctional Investigator said the following about the use of this term in relation to CSC inmates:
The case study uses the term ‘Black’ to denote those inmates who voluntarily self-identified during the CSC intake process as being ‘Black’. The CSC currently uses 28 categories of racial identification, which has recently increased from 15 categories. Previously, Black inmates primarily self-identified under the category ‘Black’, however with the recent addition of geographical-based race categories, some may now self-identify as ‘Caribbean’ and ‘Sub-Sahara African’. While many different terms (Black, African, Caribbean, etc.) are used throughout the literature, this case study employs the term ‘Black’ to be consistent with the way in which the CSC collects and reports race data. Further, it is recognized that this group is very diverse and comprises various nationalities as well as ethnic and cultural groups. However, in order to have a representative sample, it is necessary to group them together for the purposes of the analysis. Finally, it should be noted that not all Black inmates included in the investigation and analysis are Canadian citizens as some are foreign nationals.
[3] Mr. Araya alleges that he was subjected to racial abuse by CSC officials and other prison inmates while he was incarcerated. He brings this proposed class proceeding on behalf of the following persons [Class]:
All Black persons who allege that they were subjected to physical, emotional and/or psychological abuse while incarcerated in a CSC Facility at any time during the Class Period, and who are alive on the date this action is certified.
[4] The Defendant Attorney General of Canada opposes certification of this proposed class proceeding. The Defendant asserts that the Statement of Claim does not disclose reasonable causes of action; the proposed Class is overly broad and indeterminate; there are no common issues of law or fact; the proposed class proceeding is not the preferable procedure for resolving the claims of Class members; and Mr. Araya is not a suitable Class representative.
[5] Subject to certain modifications of the Statement of Claim and common questions of law or fact, the Plaintiff has satisfied the criteria for certification of a class proceeding enumerated in Rule 334.16(1) of the Federal Courts Rules, SOR 98/106 [Rules]. The proposed class action will be certified accordingly.
II. Background A. Facts Relied Upon by the Plaintiff [6] The Plaintiff relies on his own experience in correctional facilities, the expert evidence of Dr. Akwasi Owusu-Bembah, and numerous public reports and other documents. The Plaintiff cautions that much of the evidence was assembled before the claim was significantly narrowed in July 2023.
(1) Evidence of Mr. Araya [7] Mr. Araya began serving his sentence at Drumheller Institution. He does not allege that he was subjected to racial abuse while he was incarcerated there.
[8] The primary focus of Mr. Araya’s evidence is his incarceration at William Head Institution, a minimum-security facility on Vancouver Island. He says that he was often “ignored or dismissed” by white corrections officers, and that his treatment differed from that accorded to white inmates. For example, he claims he was rebuffed when he sought medical care, but white inmates with no obvious injuries received prompt medical attention. When he suffered a serious head injury, he was repeatedly turned away.
[9] Mr. Araya also claims to have been subjected to racial stereotyping. For example, his parole officer told him that she would not want him to coach her children in sports, because he was “clearly a drug dealer”. Another CSC official told Mr. Araya that he would not want someone like him living in his community. He notes that CSC officials who were themselves visible minorities did not subject him to differential treatment. He says there were no programs or activities directed specifically towards Black prisoners.
[10] Mr. Araya often raised concerns of racism at William Head Institution, although he never filed a formal grievance. He says he was afraid this would result in reprisal or adversely affect the timing of his release. He says that inmates who filed grievances were routinely punished by CSC officials.
[11] Mr. Araya recounts one occasion when a fellow inmate persistently shouted the “n-word” at him. Mr. Araya told the inmate that if he didn’t stop, then he would have to “settle” the matter. CSC officials were slow to intervene, and Mr. Araya was eventually reprimanded for threatening the other man.
[12] Mr. Araya says he continued to endure racism following his release from William Head Institution. While living at a halfway house during the pandemic, he was pressured to leave in order to make room for more “vulnerable” prisoners, all of whom were white. Mr. Araya’s parole officer reassessed his risk of engaging in domestic violence in a manner that he says relied on stereotypes of Mr. Araya and his Indian girlfriend.
[13] Mr. Araya claims that that his experiences of racism “amplified” his feelings of helplessness and powerlessness, which resulted in panic attacks, sleepless nights, anxiety and depression after his release.
[14] Mr. Araya says that he knows of five or six other potential members of the proposed Class.
(2) Expert Evidence of Dr. Owusu-Bempah [15] Dr. Akwasi Owusu-Bempah is a professor of criminology who studies anti-Black racism in the criminal justice system. He has published widely on the subject, including with respect to Canadian correctional institutions. In addition to his research and writing, Dr. Owusu-Bempah has advised the Office of the Correctional Investigator, reporting on the experiences of Black offenders within CSC institutions. He has also testified before the Senate Standing Committee on the Human Rights of Federally-Sentenced Persons. He has been interviewed by the Auditor General of Canada, and was recently appointed to the Steering Group for Canada’s Black Justice Strategy.
[16] In his first report, Dr. Owusu-Bempah states that “CSC’s practices, procedures, instruments, policies and other acts and omissions systematically disadvantage racialized prisoners in comparison to white prisoners.” According to counsel for the Plaintiff:
He concludes that Black prisoners serve longer and harsher sentences characterized by more severe security classifications, a lack of access to culturally-appropriate programming, poorer employment prospects while incarcerated, increased rates of involuntary transfers, increased likelihood of being subjected to institutional discipline, and an increased likelihood of being subjected to use of force. Black prisoners also face decreased chances of obtaining temporary absences and parole.
[17] Dr. Owusu-Bempah says that the issues he identifies were brought to the CSC’s attention as long ago as 2013, but this did not result in any meaningful changes in policies or procedures. The Auditor General and the Senate Standing Committee on Human Rights have made numerous recommendations, but none of these has been implemented.
[18] Dr. Owusu-Bempah submitted a second report to address the findings and recommendations of the 2021-2022 Annual Report of the Office of the Correctional Investigator. He concludes that little has changed regarding the conditions faced by Black prisoners in CSC institutions.
(3) Reports of the Office of the Correctional Investigator [19] In his first expert report, Dr. Owusu-Bempah relies heavily on reports of the Office of the Correctional Investigator [OCI Reports], specifically: “A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries”, 2013; “Administrative Segregation in Federal Corrections: 10 Year Trends”, 2015; Annual Report, 2016-2017; “Missed Opportunities: The Experience of Young Adults Incarcerated in Federal Penitentiaries”, 2017; “Federal Offender Trends”, 2020; and the Annual Report, 2020-2021.
[20] According to Dr. Owusu-Bempah, the OCI Reports demonstrate that Black male prisoners, compared to their white male counterparts, are more likely to experience use of force, are less likely to be placed in minimum-security institutions, receive lower potential reintegration scores from CSC staff, are more often placed into solitary confinement and structured intervention units, and are disproportionately denied temporary absences and parole. The OCI Reports also state that most Black prisoners do not report gang membership but this is often imputed to them, resulting in Security Threat Group classifications that have negative consequences.
[21] CSC has been encouraged to allow Black inmates access to outside cultural organizations, but the OCI Reports suggest that CSC has done little work in this direction. Research has shown that for Indigenous inmates, connections with outside cultural groups can aid reintegration. On paper, CSC has a mentorship program that should fill this gap for Black inmates, but the OCI’s investigations have found that few inmates are aware of its existence. Many Black prisoners believe there is little institutional will to provide the kind of cultural programming that would interest them. When programming is provided, it is poorly supported and under-funded.
[22] The OCI Reports also find disproportionate unemployment among Black inmates. Jobs in CSC facilities that require higher levels of trust from CSC staff are particularly difficult to obtain. Black inmates are also underrepresented in CORCAN jobs, which provide vocational training that helps with reintegration.
[23] Institutional discipline is highlighted in the OCI Reports. Discipline can have significant impacts on the duration of inmates’ stays in facilities, because it can lengthen applications for parole or justify their denial. Institutional discipline may also result in inmates’ forfeiture of important privileges and property, and may lead to fines, additional duties, and restrictions on visitors. Between 2007 and 2012, disciplinary charges increased for Black inmates, but decreased for the overall inmate population. Black inmates are less likely to receive disciplinary charges for offences that require objective proof (e.g., possession of contraband), and more likely to be charged with offences that have a subjective component (e.g., disrespecting CSC staff).
[24] Dr. Owusu-Bempah’s second expert report reassesses his first report in light of the OCI’s Annual Report, 2021-2022. He concludes that little has changed, quoting from the 2021-2022 Report as follows:
Despite CSC’s concerted efforts to make changes with respect to inclusion, diversity and anti-racism, incarcerated Black persons reported to OCI investigators that very little had materially changed for the better over the years … All of the issues identified in 2013 remain today.
(4) Report of the Auditor General [25] In 2022, the Auditor General of Canada published a report titled “Systemic Barriers –Correctional Service Canada” [Auditor General’s Report]. This document is also referred to in Dr. Owusu-Bempah’s first expert report.
[26] Dr. Owusu-Bempah highlights the following findings from the Auditor General’s Report: CSC has failed to address and eliminate systemic barriers affecting disadvantaged groups, including Black inmates; Black and indigenous inmates face greater barriers to a safe and gradual reintegration into society than certain other groups; disparities in treatment, security classifications and outcomes begin the moment inmates enter CSC institutions; and CSC’s efforts to promote diversity, equity and inclusion have fallen short, with roughly one quarter of staff not having completed mandatory training one year after the deadline. Black representation among CSC staff relative to the inmate population is poor.
[27] The Auditor General’s Report contained numerous recommendations. The recommendations cited in Dr. Owusu-Bempah’s expert reports encompass improving access to correctional programs by inmates and examination of the effectiveness of those programs for Black inmates; improving the collection of race-based data in order to monitor the impact of correctional policies on diverse inmate populations; addressing the root causes of delaying prisoners’ release, particularly of Black prisoners; improving the timely reassessment of inmates’ security levels; improving workforce diversity to better represent the inmate population; and ensuring that staff complete the required diversity training.
(5) Report of the Senate Standing Committee on Human Rights [28] In June 2021, the Senate Standing Committee on Human Rights released a report on the “Human Rights of Federally-Sentenced Persons” [Senate Report]. The Senate Report contains a number of recommendations, some of which Dr. Owusu-Bempah highlights in his expert reports. These include: working to ensure that correctional plans are tailored to the unique experiences and reintegration challenges of marginalized and vulnerable groups; reviewing use of force policies, with a focus on the disproportionate use of force against Black and other marginalized and vulnerable inmates; putting in place mechanisms to ensure that CSC staff who use disproportionate force are held accountable; and improving training for CSC staff on human rights, equity and non-discrimination.
B. Facts Relied Upon by the Defendant [29] The Defendant relies on the cross-examinations of Mr. Araya and Dr. Owusu-Bempah, and an affidavit sworn by a paralegal manager with the Department of Justice appending records pertaining to Mr. Araya’s incarceration and CSC policies on offender management.
(1) Mr. Araya’s File [30] Throughout his incarceration, Mr. Araya was classified as a minimum-security offender. He was transferred to William Head Institution at his own request, so he could be nearer his family and girlfriend. His allegations of racism all arise from the seven weeks he spent at William Head Institution and following his release.
[31] Mr. Araya has filed a separate civil suit in the British Columbia Supreme Court. In that proceeding, he claims that the CSC denied him access to medical care following a head injury, causing him physical and psychological harms.
[32] With respect to the altercation in which Mr. Araya was repeatedly called the “n-word”, the Defendant notes that Mr. Araya did not mention the use of the slur when he recounted the incident to the Parole Board. While Mr. Araya claims he was “punished” following the incident, there were no disciplinary charges and he was subsequently moved to a different bunkhouse with the help of an Inmate Committee Representative.
[33] Despite Mr. Araya’s assertion that a CSC official “refused to call for help” when he sought medical assistance following his head injury, in cross-examination he admitted that the official did in fact call Health Services. Mr. Araya also admitted that he had been disrespectful towards medical staff, including by accusing them of racism, for which he subsequently apologized.
[34] Mr. Araya claims there were no programs or activities for Black offenders, but in cross-examination he admitted that there was an Ethnic Cultural Committee at William Head Institution that held more than one event during the brief period he was incarcerated there. He did not participate in these events.
[35] Mr. Araya received full parole at the earliest opportunity and with the support of his parole officer. He was never the subject of a disciplinary charge.
(2) CSC Institutions and Policies [36] CSC operates 43 institutions and 14 community correctional centres across the country, in addition to 92 parole offices and sub-parole offices. Drumheller Institution is a medium-security facility with a minimum-security annex. William Head Institution is a minimum-security facility.
[37] There is a CSC internal grievance process that aims to address offender complaints at the lowest possible level. Grievance responses are initially prepared at the institutional or district level, and can be elevated to the Office of the Commissioner. Decisions of the Commissioner are subject to judicial review. Depending on the circumstances, offenders may also pursue remedies in other fora, such as the Canadian Human Rights Commission. CSC’s expectation is that offenders may submit grievances without reprisal.
C. Objections to the Evidence (1) Evidence of Mr. Araya [38] The Defendant challenges the credibility of Mr. Araya’s testimony. According to the Defendant, Mr. Araya’s claim that he did not receive medical treatment following his head injury is contradicted by his own admission that he did. Mr. Araya responds that he is not alleging a denial of medical care; only that he had to take additional steps to receive it that would not have been necessary if he were white.
[39] Mr. Araya acknowledges that he was not subjected to a disciplinary charge following the altercation with the inmate who repeatedly called him the “n-word”. However, he says that he was verbally reprimanded and made to seek alternative accommodations without institutional support.
[40] In response to the Defendant’s assertion that he could have participated in events convened by the Ethnic Cultural Committee at William Head Institution, Mr. Araya maintains his position that there were no programs or activities specifically directed towards Black offenders.
[41] I am not persuaded that the criticisms of Mr. Araya’s testimony are sufficient for this Court to reject his credibility, particularly given the low evidentiary threshold for establishing “some basis in fact” in a motion to certify a proposed class action. Mr. Araya’s testimony must be understood together with the expert opinion of Dr. Owusu-Bempah and the documentary evidence.
(2) Expert Evidence of Dr. Owusu-Bempah [42] The Defendant does not dispute Dr. Owusu-Bempah’s qualifications or his capacity to provide the Court with expert evidence regarding the experiences of Black inmates in Canadian correctional facilities. However, the Defendant says that his opinions rely heavily on public reports that are replete with hearsay and advocacy; he often summarizes observations and conclusions contained in public reports without offering an independent opinion; and he sometimes exhibits partiality towards the proposed Class. He also expresses opinions beyond his area of expertise, e.g., the use of disciplinary charges as a “psychological tool.”
[43] The Defendant notes that some of the opinions expressed by Dr. Owusu-Bempah in his expert reports appear to be inconsistent with materials he has prepared for use elsewhere. For example, a training presentation, co-authored by Dr. Owusu-Bempah, notes that systemic racism in Canadian society affects child welfare, family structures, education, poverty, crime victimization, and interactions between Black people and the police. These societal and individual factors influence Black individuals’ experiences within the criminal justice system generally. The Defendant says this suggests the implementation of CSC’s policies and practices are not to blame for any differential outcomes that may be experienced by Black inmates in correctional facilities.
[44] Expert witnesses have a duty to the Court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty, and be able and willing to carry it out. If they do not meet this threshold requirement, then their evidence should not be admitted (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [White Burgess] at para 32, 46).
[45] Once this threshold is met, however, concerns about an expert witness’ independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence (White Burgess at para 54). The threshold requirement is not particularly onerous, and a proposed expert’s evidence will only rarely be excluded for failing to meet it. It is the nature and extent of the interest or connection with the litigation that matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. However, an expert who assumes the role of an advocate for a party is clearly unwilling or unable to carry out the primary duty to the court (White Burgess at para 49).
[46] I am satisfied that Dr. Owusu-Bempah’s first and second reports contain information and opinion that are useful to the Court and satisfy the criteria for admission articulated by the Supreme Court of Canada in White Burgess at paragraph 19 and R v Mohan, [1994] 2 SCR 9 at page 23. To the extent that Dr. Owusu-Bempah’s observations rely on hearsay, venture into advocacy, or exceed his area of expertise, they may be discounted accordingly. Dr. Owusu-Bempah’s expert opinion must be considered together with the other testimony and documentary evidence adduced on behalf of the Plaintiff, having regard to the low evidentiary threshold for establishing “some basis in fact” in a motion to certify a proposed class action.
(3) Documentary Evidence [47] The Defendant argues that the documentary evidence relied upon by the Plaintiff, consisting primarily of public reports issued by the Office of the Correctional Investigator and the Senate Report, are not admissible for the truth of their contents. The Defendant relies on the decision of the Federal Court of Appeal (per Roussel JA) in Bigeagle v Canada, 2023 FCA 128 at paragraphs 44 and 46:
While the referral to reports may be used on a certification motion to help put uncontentious facts into context, to determine whether the references made in the statement of claim are accurately reflected and to assist in discharging the “some basis in fact” burden, the reports cannot be used as a means to fill in the existing gaps or the blanks in the pleadings. The argument advanced by Ms. BigEagle would require the motion judge to review thousands of pages of reports to determine what material facts support each cause of action. It would also impose upon the motion judge the burden of sorting out the material facts from the evidence, the latter of which is not admissible to establish the “reasonable cause of action” condition of the test for certification. It is clearly not the role of the motion judge to comb through the reports in order to particularize broad allegations that might support Ms. BigEagle’s causes of action. […]
The primary concern with relying on commission reports as the basis for material facts stems from the fact that commissions of inquiry do not have the same evidentiary standards as those applied by a court, in part because they have a different purpose. Often, the information gathered is not taken under oath and constitutes hearsay. Likewise, the process followed does not automatically provide for due process, including the right to cross-examine during fact gathering […]. Investigative and commission reports are also not intended to state a cause of action [citations omitted].
[48] Here, the relevant excerpts from the public reports have been particularized in the expert reports of Dr. Owusu-Bempah and the submissions of counsel for the Plaintiff. Consideration of these excerpts does not impose an undue burden on the Court. Furthermore, as the Federal Court of Appeal has confirmed in Canada v Greenwood, 2021 FCA 186 [Greenwood FCA] at paragraph 96, public reports have “frequently been relied on in certification matters, along with other evidence, to support that there is some basis in fact for the final four criteria for certification.” The Federal Court of Appeal continued at paragraph 97 (per Gleason JA):
Indeed, the Crown recognizes that the Reports could be admitted on this basis to establish, along with other evidence, that the final four criteria for certification were met. Here, there was such other evidence from the representative plaintiffs in respect of their own situations and observations. The Federal Court thus did not err in admitting and relying on the Reports along with the evidence from the representative plaintiffs in consideration of the final four criteria for certification.
[49] In this case, the public reports are intended to supplement the direct evidence of Mr. Araya and the expert opinion of Dr. Owusu-Bempah. They provide additional context and may provide some basis in fact for extrapolating the experiences of the representative Plaintiff to the proposed Class. I am satisfied that they are admissible for these purposes.
(4) Reply and Supplemental Evidence of the Plaintiff [50] Shortly before this motion was scheduled to be heard in July 2023, the Plaintiff filed a substantially amended Statement of Claim accompanied by a third expert report and reply of Dr. Owusu-Bempah, and an affidavit sworn by a paralegal employed by the Plaintiff’s law firm. The Defendant objects to both the third expert report and further affidavit evidence.
[51] Dr. Owusu-Bempah’s third expert report is intended to reply to criticisms of the first two reports contained in the Defendant’s written submissions in opposition to the certification motion. The Defendant says these matters should have been comprehensively addressed in the initial expert reports, and constitute improper rebuttal of legal argument. The Defendant notes that the Crown has adduced no expert evidence that would be amenable to reply.
[52] The paralegal’s affidavit appends correspondence between the parties concerning the Plaintiff’s amended certification motion materials, together with the Statement of Claim and Notice of Motion filed in Nasogaluak v Canada (Attorney General), 2021 FC 656 [Nasogaluak FC]. Also appended to the affidavit are Directives from the CSC Commissioner concerning the management of security incidents and the use of force. Other exhibits include the CSC’s response to the Office of the Correctional Investigator’s 2012-2013 report, and other documents describing systemic racism in the criminal justice system.
[53] The Defendant takes the position that the evidence contained in the paralegal’s affidavit was publicly accessible and available at the time the Plaintiff served and filed his original certification motion. The Plaintiff has not provided a reason for failing to adduce this evidence earlier, and its inclusion in the amended consolidated certification motion record may be prejudicial to the Defendant.
[54] Rule 312 permits parties to seek leave to file additional affidavits on an application, while Rule 84(2) governs the filing of affidavits after cross-examinations have been completed. The Rules should be interpreted in a consistent manner (Jacques v Canada, 2023 FC 715 at para 11, citing Salton Appliances (1985) Corp v Salton Inc (2000), 181 FTR 146).
[55] The parties’ cross-examinations, including that of Dr. Owusu-Bempah, were completed by the end of February 2023. The third expert report and the additional affidavit were submitted the following July, six months later. The Plaintiff did not seek the Defendant’s consent, nor leave of the Court, as required by Rules 84(2) and 312.
[56] The necessity of Dr. Owusu-Bempah’s third expert report is doubtful. He purports to provide guidance to the Court on how to read and understand his previous reports, implicitly claiming expertise in assessing his own expertise. As the Supreme Court of Canada held in R v J-LJ, 2000 SCC 51 at paragraph 56 (per Binnie J): “[t]he purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.”
[57] I am not persuaded that Dr. Owusu-Bempah’s third expert report contributes anything material to the previous two reports. He reiterates his previous conclusions, while providing further explanation of his methodology.
[58] Dr. Owusu-Bempah’s third expert report and the paralegal’s affidavit were both filed in a manner that contravened Rules 84(2) and 312, and must be rejected. I will nevertheless take judicial notice of the Statement of Claim and Notice of Motion filed in Nasogaluak FC. It is a long-established principle in the common law that courts may take judicial notice of their own records (Petrelli v Lindell Beach Holiday Resort Ltd, 2011 BCCA 367 at para 36, citing R v Jones (1839), 8 Dowl 80 and Craven v Smith (1869), LR 4 Exch 146).
(5) Defendant’s Affiant [59] The Plaintiff notes that the Defendant has not adduced any affidavit evidence regarding CSC’s practices or conduct towards Black inmates. The Defendant’s sole affiant is a paralegal employed by the Department of Justice who has no personal knowledge of how CSC operates, the existence of systemic racism within CSC facilities, or the manner in which CSC implements the policies appended as exhibits to her affidavit. Where a party fails to provide the evidence of persons having personal knowledge of material facts, the Rules permit the Court to draw an adverse inference (Rule 81(2), Tippett v Canada, 2019 FC 869 at para 33).
[60] In Wesley v British Columbia et al, unreported, March 20, 2023, Court File No VIC-S-S-202473, Justice Veronica Jackson of the British Columbia Supreme Court observed at paragraph 63 that a paralegal employed by the legal department representing a client ministry cannot speak to the state of knowledge of the government defendant. She continued at paragraph 64:
[…] Without diminishing the importance of the role of paralegals and intending no disrespect to the affiant in this case, a paralegal position is not one that carries the type of supervisory responsibility and accountability that would lead me to infer that their knowledge equates to the knowledge of Canada. If the affiant’s knowledge is based on information and belief, facts would need to be stated and the source of that information particularized.
[61] The Plaintiff says the Defendant has failed to fulfill the requirements of Rule 334.15(5)(b), and has provided no evidence regarding CSC’s treatment of Black inmates, nor anything to refute the Plaintiff’s contention that CSC’s operational practices promote and perpetuate the Abuse of Black Inmates, as defined in the Statement of Claim. The Plaintiff therefore asks the Court to draw the inference that an affidavit from the Defendant that complied with Rule 334.15(5)(b) would have supported certification of this proceeding as a class action. The Plaintiff notes that CSC has publicly acknowledged the existence of systemic racism within federal penitentiaries.
[62] I am not persuaded that an adverse inference is warranted in these circumstances. The Defendant acknowledges that it may have been preferable to offer an affiant with personal knowledge of CSC’s policies and procedures respecting the treatment of Black offenders. However, the Defendant says that the policies appended to the affiant’s affidavit speak for themselves. This is a procedural motion and not a hearing on the merits. The Defendant has opted to rely on documentary evidence and cross-examination of the Plaintiff’s witnesses. The Defendant emphasizes that the Crown is under no obligation to help the Plaintiff make his case.
[63] Nevertheless, the fact remains that the Defendant has offered no evidence to contradict the factual assertions of the Plaintiff regarding the Abuse of Black Inmates, as defined in the Statement of Claim. This has obvious implications for the Court’s assessment of whether the low threshold of “some basis in fact” has been met in this certification motion.
III. Issues [64] The question before the Court is whether the Plaintiff has satisfied the five-part test for certification of this proceeding as a class action (Rule 334.16(1)), namely:
Do the pleadings disclose a reasonable cause of action?
Is there an identifiable class of two or more persons?
Do the claims of the class members raise common questions of law or fact?
Is a class proceeding the preferable procedure?
Is Mr. Araya a suitable Class representative?
IV. Analysis A. Do the pleadings disclose a reasonable cause of action? [65] It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and the relief sought (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 [Mancuso] at para 16). Pleadings play an important role in providing notice and defining the issues to be tried. The Court and opposing parties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action. If the Court were to allow parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues (Mancuso at paras 16-17).
[66] A plaintiff must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability. Plaintiffs cannot file inadequate pleadings and rely on a defendant to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars (Mancuso at paras 19-20).
[67] The normal rules of pleading apply with equal force to a proposed class action. The Court must view the pleading as it has been drafted, not as it might be drafted. The launching of a proposed class action is a matter of great seriousness, potentially affecting many class members’ rights and the liabilities and interests of defendants. Complying with the Rules is not trifling or optional; it is mandatory and essential (Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 at para 40).
(1) Further Amended Statement of Claim [68] The Plaintiff’s Statement of Claim has undergone many revisions. The initial pleading was very broad, and sought certification of a class action alleging systemic racism against CSC inmates who are Black, Indigenous and People of Colour [BIPOC]. The causes of action included misfeasance in public office; breach of fiduciary duty; infringement of the rights of indigenous persons under the United Nations’ Declaration on the Rights of Indigenous Peoples, the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2001, c 14, and s 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; systemic negligence; and breaches of ss 7, 9, 12, 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [Charter], as well as the analogous rights enshrined in Quebec’s Charter of Human Rights and Freedoms, CQLR, c C-12.
[69] Shortly before the hearing of this certification motion was scheduled to commence in July 2023, and following the Federal Court of Appeal’s decision in Canada (Attorney General) v Nasogaluak, 2023 FCA 61 [Nasogaluak FCA], the Plaintiff substantially amended the Statement of Claim. The new pleading adopted much of the language from the Statement of Claim filed in Nasogaluak FC, as modified in accordance with the Federal Court of Appeal’s reasons in Nasogaluak FCA.
[70] The new pleading reflected four significant changes. First, references to BIPOC inmates were omitted and the claim was confined to Black inmates. Second, the allegation of breach of fiduciary duty was abandoned (see Nasogaluak FCA at paras 54-66). Third, the Plaintiff dropped the claim for misfeasance in public office. Fourth, claims under the Quebec Charter disappeared.
[71] The resulting Statement of Claim seeks certification of claims in systemic negligence and breaches of ss 7 and 15(1) of the Charter. The Plaintiff says the claim is now indistinguishable from the one approved by this Court in Nasogaluak FC, as further amended pursuant to Nasogaluak FCA.
[72] This is true to a point. However, the Statement of Claim continues to advance a broad definition of “Anti-Black Racism”, which is said to include the following (at para 41):
a. A culture, both overt and covert, which considers Black Inmates through the lens of harmful stereotypes which dehumanize them, portray them as less worthy of protection from abuse, and with a greater propensity for dangerous behaviour, violence, gang affiliation, and criminality.
b. Use by CSC and CSC Staff of discriminatory educational materials and requiring Class members to engage with such materials, including by having Class members read aloud passages containing the “n-word,” which dehumanizes Black Inmates among non-Black Inmates and CSC Staff, and contributes to the stereotypical perception that Black Inmates are less worthy of protection from abuse than non-Black Inmates.
c. Failure by CSC to provide culturally-relevant education and programming designed for Black Inmates, instead providing “ethnocultural” materials which erroneously treats non-white Inmates homogeneously and which not culturally appropriate or relevant for Black Inmates, with the result that Class members disproportionately do not participate, under-perform or drop out of programs necessary to rehabilitate themselves, obtain privileges during incarceration, or attain an earlier release from imprisonment.
d. Failure by CSC to systematically evaluate its use of the “Security Threat Group” label in relation to Black Inmates, or to provide training to CSC Staff on how to apply it in a manner which is non-discriminatory against Class members, particularly by failing to address overt and covert racism against Black Inmates such as stereotypical views about the dangerousness or criminality of Black Inmates, resulting in disproportionate labeling of Black Inmates as being “gang affiliated,” leading to higher security classification and more restrictive conditions of incarceration for Black Inmates as a group, and perpetuating or contributing to the stereotypical perception in CSC Facilities and among CSC Staff that Black Inmates are more dangerous, more given to criminality, and less worthy of protection from abuse than non-Black Inmates.
e. Failure by CSC to systematically evaluate its use of involuntary transfers in relation to Black Inmates, or to provide training to CSC Staff on how to apply involuntary transfers in a manner which is non-discriminatory against Class members, particularly by failing to address overt and covert racism against Black Inmates such as stereotypical views about the dangerousness or criminality of Black Inmates, resulting in disproportionate involuntary transfers of Black Inmates, leading to higher security classification and more restrictive conditions of incarceration for Black Inmates as a group, and perpetuating or contributing to the stereotypical perception in CSC Facilities and among CSC Staff that Black Inmates are more dangerous, more given to criminality, and less worthy of protection from abuse than non-Black Inmates.
f. Failure by CSC to systematically evaluate its use of discretionary disciplinary charges