James v. Canada (Attorney General)

James v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-08-12
Neutral citation
2015 FC 965
File numbers
T-2115-14
Decision Content
Date: 20150812
Docket: T-2115-14
Citation: 2015 FC 965
Ottawa, Ontario, August 12, 2015
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JEAN JAMES
Applicant
and
CANADA (ATTORNEY GENERAL)
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under s 18 of the Federal Courts Act, RSC 1985, c F-7 for judicial review of the decision of an Acting Senior Deputy Commissioner [Deputy Commissioner] with Correctional Services Canada [CSC], dated July 30, 2014 [Decision], which denied the Applicant’s third level grievances under CSC’s offender complaints and grievances process.
II. BACKGROUND [2] The Applicant is an inmate at the Fraser Valley Institution. She began serving a life sentence for first-degree murder on November 4, 2011.
[3] The Applicant has been married to her husband for over forty years. They have one adult son.
[4] The Applicant first applied to the Private Family Visit [PFV] program in early 2012.
[5] On April 4, 2013, a parole officer completed a Community Assessment. The parole officer determined that the Applicant’s husband and son were suitable candidates for the PFV program.
[6] On April 20, 2013, the Applicant’s case management team [CMT] conducted an Assessment for Decision [A4D]. The CMT determined that the Applicant was an unsuitable candidate for the PFV program because of the “unmanageable” risk of family violence. The A4D outlined a number of factors that contributed to the Applicant being an unsuitable candidate (Certified Tribunal Record [CTR] at 57-58):
Ms. JAMES was not scored on the Statistical Information on Recidivism – Revised 1 (SIR-R1) scale, as this tool has not been validated for use with female offenders. A CPIC review indicates no confirmed reports of domestic violence requiring police intervention. However, according to a Family Violence Risk Assessment completed 2012-02-09, Ms. JAMES is a suspected perpetrator of spousal assault. File information indicates that Ms. JAMES can be volatile when angry and she has allegedly been observed throwing things at her husband in a state of rage. File information also indicates that Ms. JAMES’ husband stayed in the marital relationship as he was afraid of Ms. JAMES; that is, he was scared to leave her. Ms. JAMES’ husband’s suspected marital infidelities allegedly culminated in Ms. JAMES making enquiries about murdering her husband with poison. She also allegedly made enquiries about obtaining a gun, which she would use to shoot and kill her husband. While family violence has been identified as a factor in the Correctional Plan, Ms. JAMES has yet to address this need area through programming, which is concerning to the writer in the context of this assessment for decision.
It is notable, however, that Ms. JAMES and her husband both deny any violence in their relationship. There is no provincial or federal institutional suspicion or evidence of abusive, threatening or controlling behaviour by Ms. JAMES towards family members during telephone calls or visits. It is also notable that Ms. JAMES lived with her husband for over 16 years post-index offence, and not only did she not kill her husband (notwithstanding the above-noted alleged enquiries made about killing her husband). Having said this, Ms. JAMES is now serving a life (25) sentence for an offence ostensibly related to her husband’s marital infidelity with the victim. Ms. JAMES appears to have lived those 16-plus post-index offence years with her husband with the belief that she would not be held responsible for the murder of her friend. Ms. JAMES, therefore, had every reason to avoid the suspicion of police that surely would have arisen if her husband had also died as a result of foul play. This is apparent in light of the fact that, in 1992, Ms. JAMES was arrested (and later released) after becoming a prime suspect in the murder that she was ultimately convicted of in 2011.
What cannot be denied for the purpose of this risk assessment is the fact that Ms. JAMES was found guilty, beyond any reasonable doubt, of the pre-meditated first-degree murder of her former friend. This murder was particularly cruel and heinous in its execution; for example, the victim sustained myriad wounds from a sharp-bladed instrument and was nearly decapitated in the fatal attack. The damage inflicted upon the victim far exceeded what was necessary to meet the goal of murdering the victim. As such, Ms. JAMES has a confirmed history of pre-meditated violent behaviour against a person. Moreover, it is particularly concerning to the writer that Ms. JAMES has not yet begun the process of addressing her criminogenic factors through programming; that is, Ms. JAMES is currently an untreated violent offender. According to her Correctional Plan, “Until such time as Ms. JAMES is able to be accountable for her offence and become engaged in her correctional plan meaningfully, the level of risk for violence will remain High.”
[7] The A4D also noted that the Applicant had allegedly attempted to contract out the assault of one or more inmates at the Fraser Valley Institution and that the Applicant was suspected of tampering with inmates’ food. The A4D also referenced the Applicant’s escape risk. While the risk remained low, the Applicant had been investigated for making inquiries into obtaining a fake passport.
[8] The Applicant denies all of the suspicions and allegations. She says that she has never been violent towards her husband or her son. She believes that the allegations come from family members who suffer from dementia or from whom she is estranged.
[9] On April 23, 2013, a Visits Review Board denied the Applicant’s PFV application.
[10] In early May 2013, the Applicant submitted a rebuttal to the Visits Review Board’s decision.
[11] On June 10, 2013, the Applicant requested that the allegations of domestic violence be removed from her file. The Applicant was advised that she had submitted the request on the wrong form. The Applicant grieved this response.
[12] On June 24, 2013, the Fraser Valley Institution Warden [Warden] wrote a memorandum upholding the Visits Review Board’s decision to deny the Applicant’s application to participate in the PFV program. This memorandum referenced the domestic violence allegations and noted that the Applicant had presented no new information to suggest that she was no longer at risk for family violence.
[13] Sometime before July 2013, the Applicant submitted a request to her Primary Worker to remove the allegations in the A4D that she had tampered with inmates’ food and had attempted to contract the assault of another inmate because they were not true.
[14] On July 12, 2013, the Applicant’s Primary Worker prepared a memorandum. The Primary Worker denied her request because the A4D referred to suspicions or allegations and noted that the Applicant had denied the allegations. The Primary Worker refused to amend the A4D because the statements did not suggest absolute statements of truth.
[15] On July 31, 2013, the Applicant submitted a written complaint in response to the memorandum [Complaint 11689]. She asked that the file be corrected so that her file information was accurate and up-to-date.
[16] On September 2, 2013, the Applicant was notified that the complaint was denied. However, the decision-maker said that a memorandum would be added to the Applicant’s file to explain the results of the investigations into the allegations to clarify their validity.
[17] On September 9, 2013, the Applicant submitted a first level grievance [First Level Grievance 11689]. The Applicant reiterated her complaints about the allegations relating to food tampering and the assault contract. She also raised an issue about the inclusion of the family violence allegations in the A4D.
[18] On September 12, 2013, the Applicant submitted a complaint about the Visits Review Board’s decision to deny her access to the PFV program [Complaint 12301]. The Applicant reaffirmed her position that there had never been any family violence and that the decision was based on incorrect information. She also relied on the fact that there had never been any issues during her husband’s many visits to the Fraser Valley Institution. The Applicant asked that she be reassessed for participation in the PFV program.
[19] On September 22, 2013, the Applicant submitted a first level grievance challenging the Warden’s decision to uphold her denial into the PFV program [First Level Grievance 12459].
[20] On September 27, 2013, the Applicant elevated First Level Grievance 12459 to a second level grievance [Second Level Grievance 12459].
[21] On October 3, 2013, the Applicant received a response to First Level Grievance 11689. It stated that the Applicant’s grievance was denied because the appropriate policy had been followed in declining to remove information from the Applicant’s file. It also noted that the follow-up memorandum had already been added to her file to clarify the allegations.
[22] On October 11, 2013, the Applicant was notified that Complaint 12301 was denied.
[23] On October 12, 2013, the Applicant elevated First Level Grievance 11689 to a second level grievance [Second Level Grievance 11689].
[24] On October 23, 2013, the Applicant elevated Complaint 12301 to a first level grievance [First Level Grievance 12301].
[25] On November 1, 2013, the Applicant received a response to both Second Level Grievance 12459 and Second Level Grievance 11689. The Applicant’s Second Level Grievance 11689 was upheld in part. The Warden agreed to amend the A4D to note that a formal correction to the allegations had been requested.
[26] On November 19, 2013, the Applicant elevated Second Level Grievance 12459 to a third level grievance [Third Level Grievance 12459]. This grievance combined elements of Complaint 12301 and First Level Grievance 12301. The Applicant reiterated that she had wrongly been denied access to the PFV program, and she complained that the appropriate policy had not been adhered to. She highlighted the fact that she had never been violent towards her husband, that there were no security concerns arising from her husband’s many visits to the Fraser Valley Institution, that her behaviour at the Fraser Valley Institution had been exemplary, and that the decision was based on incorrect information. The Applicant also said that she had asked for more information about programming but had received “little to no information about the context of the program, the scope of the program, or the process for navigating those who are on Appeal.” The Applicant asked that she be reassessed and given access to the PFV program.
[27] On November 19, 2013, the Applicant also elevated First Level Grievance 12301 to a second level grievance [Second Level Grievance 12301].
[28] On November 21, 2013, the Applicant was advised that First Level Grievance 12301 had been denied.
[29] On November 26, 2013, the Applicant elevated Second Level Grievance 12301 to a third level grievance [Third Level Grievance 12301].
[30] On December 6, 2013, the Applicant was advised to expect a response to Third Level Grievance 12301 at the end of the March 2014. The Applicant ultimately received two further letters extending the expected completion date because Third Level Grievance 12301 required further investigation.
[31] On February 26, 2014, the Applicant was advised to expect a response to Third Level Grievance 12459 in early April 2014. The Applicant ultimately received a further letter extending the expected completion date because Third Level Grievance 12459 required further investigation.
[32] On August 1, 2014, the Applicant’s counsel asked that responses to Third Level Grievances 12301 and 12549 be provided immediately because the delay was prejudicial to the Applicant. The Applicant says that the delay caused her and her family stress and anxiety.
[33] The Applicant was provided copies of the responses to Third Level Grievances 12301 and 12459 on September 15, 2014.
III. DECISION UNDER REVIEW [34] On July 30, 2014, the Deputy Commissioner denied the Applicant’s grievances. The Deputy Commissioner responded simultaneously to Third Level Grievance 12301 and Third Level Grievance 12459 because they contained overlapping issues, in accordance with s 24 of the Commissioner’s Directive 081 [CD 081]. It appears that Second Level Grievance 11689 was also reviewed because it was considered a related subject matter.
[35] In Third Level Grievances 12459 and 12301, the Applicant had complained that her PFV application was improperly denied because the policy had not been adhered to. She said there were no security concerns so there was no reason to believe that security concerns would arise during a PFV. In Third Level Grievance 12301, the Applicant had also complained that she had never received copies of her correctional plan and criminal profile report. She said that she did not recall meeting with her Primary Worker to conduct the criminal profile assessment. She also complained that she had not received information regarding programming.
[36] The Deputy Commissioner first addressed the rationale for denying the application for the PFV program. She agreed that there were no security concerns and no reason to believe that security concerns would arise during a PFV. She also acknowledged that the Community Assessment had determined that both the Applicant’s husband and son were positive sources of support and were considered suitable candidates for the PFV program.
[37] The Deputy Commissioner also reviewed the A4D. She said that the purpose of the A4D was to determine the Applicant’s eligibility to participate in PFVs in accordance with the eligibility criteria in s 8(a) of the Commissioner’s Directive 710-8 [CD 710-8]. She noted that the A4D indicated that the Applicant is serving a life sentence for a particularly brutal murder. She noted that both the Applicant and her husband deny any violence in their relationship and that there is no institutional suspicion or evidence of abusive behaviour during the Applicant’s husband’s regular visits and phone calls. The Deputy Commissioner noted that, despite these positive factors, the Applicant’s intake assessment indicated that she had a high need for improvement in the marital/ familial domain. Her Family Violence Risk Assessment also indicated that she was suspected of being a perpetrator of spousal assault. She can be volatile when angry and has allegedly been observed throwing things at her husband in a state of rage.
[38] The Applicant’s Correctional Plan also indicated that she is required to participate in the Women Offender Correctional Program – both moderate and high intensity – to address her risk factors. She is required to successfully complete the recommended programming to address her history of abusive relationships prior to participating in PFVs with her husband. However, the Applicant has refused to participate in any programming. As a result, the Applicant is an untreated violent offender. The Correctional Plan indicates that she will be at a high risk of violence until she is accountable for her offence and becomes meaningfully engaged in her Correctional Plan.
[39] The Deputy Commissioner also pointed to the A4D’s reference to the Applicant’s escape risk. She has been investigated for making inquiries into obtaining a fake passport. With the length of her sentence, there are concerns about her risk of escape if an opportunity presented itself.
[40] Ultimately, the Applicant’s CMT determined that her risk for family violence was unmanageable in a PFV. The Applicant has yet to participate in any correctional programs. The Deputy Commissioner acknowledged that the Applicant denies any history of family violence; however, she said that s 3.1 of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA] dictates that “the protection of society is the paramount consideration.” As a result, CSC is required to consider all of the information in the Applicant’s file. The Deputy Commissioner invited the Applicant to submit a file correction form if she believes there are any errors in her file.
[41] The Deputy Commissioner concluded that the Applicant was appropriately denied participation in the PFV because she is an untreated violent offender due to her refusal to participate in any programming. This portion of the grievance was denied.
[42] The Deputy Commissioner also reviewed the Applicant’s grievances relating to information and records that she says she never received. However, the Applicant does not challenge these decisions on judicial review and so these portions of the Decision will not be reviewed.
IV. ISSUES [43] The Applicant raises the following issues in this proceeding:
1. Did the Deputy Commissioner err in law by delaying her decision with regard to the Applicant’s third level grievance for an unjustifiable period of time and without adequate explanation?
2. Did the Deputy Commissioner render an unreasonable decision in denying the Applicant permission to participate in the PFV program?
3. Did the Deputy Commissioner err by failing to conduct an independent and de novo assessment of the Applicant’s grievance?
V. STANDARD OF REVIEW [44] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[45] The Applicant says that the first issue involves breaches of procedural fairness and is reviewable on a standard of correctness: Dunsmuir, above, at paras 55, 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; Hall v Canada (Attorney General), 2013 FC 933 at para 24 [Hall]. The second issue concerns the merits of the Decision and is reviewable on a standard of reasonableness: Dunsmuir, above, at paras 51-53; Hall, above, at paras 21-22. The third issue respecting the Deputy Commissioner’s error in conducting an independent and de novo assessment is reviewable on a standard of reasonableness: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 30; Hall, above, at paras 21-22. The Respondent agrees with the Applicant’s submissions on the standard of review for all three issues.
[46] The Court concurs. The first issue raises a question of procedural fairness and will be reviewed on a standard of correctness: Mission Institution v Khela, 2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31. The second and third issues raise questions of mixed fact and law and are reviewable on a standard of reasonableness: Dunsmuir, above, at para 53; Johnson v Canada (Attorney General), 2008 FC 1357 at paras 35-39, rev’d in part on other grounds 2011 FCA 76.
[47] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir, above, at para 47; Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS [48] The following provisions of the CCRA are applicable in this proceeding:
Purpose of correctional system
But du système correctionnel
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
3. Le système correctionnel vise à contribuer au maintien d’une société juste, vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
[…]
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
[…]
Paramount consideration
Critère prépondérant
3.1 The protection of society is the paramount consideration for the Service in the corrections process.
3.1 La protection de la société est le critère prépondérant appliqué par le Service dans le cadre du processus correctionnel.
Principles that guide Service
Principes de fonctionnement
4. The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:
4. Le Service est guidé, dans l’exécution du mandat visé à l’article 3, par les principes suivants :
[…]
[…]
(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;
d) le délinquant continue à jouir des droits reconnus à tout citoyen, sauf de ceux dont la suppression ou la restriction légitime est une conséquence nécessaire de la peine qui lui est infligée;
[…]
[…]
Accuracy, etc., of information
Exactitude des renseignements
24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
24. (1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu’il utilise concernant les délinquants soient à jour, exacts et complets.
Correction of information
Correction des renseignements
2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,
(a) the offender may request the Service to correct that information; and
(b) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested.
(2) Le délinquant qui croit que les renseignements auxquels il a eu accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service en effectue la correction; lorsque la demande est refusée, le Service doit faire mention des corrections qui ont été demandées mais non effectuées.
[…]
Contacts and visits
[…]
Rapports avec l’extérieur
71. (1) In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.
71. (1) Dans les limites raisonnables fixées par règlement pour assurer la sécurité de quiconque ou du pénitencier, le Service reconnaît à chaque détenu le droit, afin de favoriser ses rapports avec la collectivité, d’entretenir, dans la mesure du possible, des relations, notamment par des visites ou de la correspondance, avec sa famille, ses amis ou d’autres personnes de l’extérieur du pénitencier.
[…]
[…]
Grievance procedure
Procédure de règlement
90. There shall be a procedure for fairly and expeditiously resolving offenders’ grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).
90. Est établie, conformément aux règlements d’application de l’alinéa 96u), une procédure de règlement juste et expéditif des griefs des délinquants sur des questions relevant du commissaire.
[49] The following provisions of the Corrections and Conditional Release Regulations, SOR/92-620 [Regulations] are applicable in this proceeding :
80. (1) If an offender is not satisfied with a decision of the institutional head or director of the parole district respecting their grievance, they may appeal the decision to the Commissioner.
80. (1) Lorsque le délinquant est insatisfait de la décision rendue au sujet de son grief par le directeur du pénitencier ou par le directeur de district des libérations conditionnelles, il peut en appeler au commissaire.
(3) The Commissioner shall give the offender a copy of his or her decision, including the reasons for the decision, as soon as feasible after the offender submits an appeal.
(3) Le commissaire transmet au délinquant copie de sa décision motivée aussitôt que possible après que le délinquant a interjeté appel.
[…]
[…]
91. (1) Subject to section 93, the institutional head or a staff member designated by the institutional head may authorize the refusal or suspension of a visit to an inmate where the institutional head or staff member believes on reasonable grounds
91. (1) Sous réserve de l’article 93, le directeur du pénitencier ou l’agent désigné par lui peut autoriser l’interdiction ou la suspension d’une visite au détenu lorsqu’il a des motifs raisonnables de croire :
(a) that, during the course of the visit, the inmate or visitor would
a) d’une part, que le détenu ou le visiteur risque, au cours de la visite :
(i) jeopardize the security of the penitentiary or the safety of any person, or
(i) soit de compromettre la sécurité du pénitencier ou de quiconque,
(ii) plan or commit a criminal offence; and
(ii) soit de préparer ou de commettre un acte criminel;
(b) that restrictions on the manner in which the visit takes place would not be adequate to control the risk.
b) d’autre part, que l’imposition de restrictions à la visite ne permettrait pas d’enrayer le risque.
(2) Where a refusal or suspension is authorized under subsection (1),
(2) Lorsque l’interdiction ou la suspension a été autorisée en vertu du paragraphe (1) :
(a) the refusal or suspension may continue for as long as the risk referred to in that subsection continues; and
a) elle reste en vigueur tant que subsiste le risque visé à ce paragraphe;
(b) the institutional head or staff member shall promptly inform the inmate and the visitor of the reasons for the refusal or suspension and shall give the inmate and the visitor an opportunity to make representations with respect thereto.
b) le directeur du pénitencier ou l’agent doit informer promptement le détenu et le visiteur des motifs de cette mesure et leur fournir la possibilité de présenter leurs observations à ce sujet.
VII. ARGUMENT A. Applicant (1) Delay [50] The Applicant submits that the unjustified delays in making and communicating the Decision were not fair or effective and breached the rules of natural justice and her right to procedural fairness: Cardinal v Director of Kent Institution, [1985] 2 SCR 643 at 653. The delay also violated her security of the person and did not accord with the principles of fundamental justice contrary to s 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 [Charter].
[51] The CCRA and the Regulations require that grievances be resolved expeditiously and that decisions be rendered as soon as practicable: CCRA, s 90; Regulations, s 80. In addition, CD 081 specifics that decisions will be rendered within eighty working days, failing which the offender will be notified of the reason for the delay and provided with an expected completion date.
[52] The Applicant’s grievance took three times as long. The Applicant received the Decision approximately nine months after she submitted the grievances and one year after she filed her first level grievance. The Applicant complains that the consultations completed on her file appear to consist simply of emails being sent back and forth. She says that each letter notifying her to expect a delay said that time was required to perform a thorough analysis but that no such analysis was taking place. She also complains that there are periods of two and a half and three months where nothing appears to have been done on her file.
[53] The content of the duty of fairness varies according to the five factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC 48 at para 5. The Applicant says that her participation in the PFV program is of the utmost importance to her. She is a senior citizen in a long-term stable marital relationship. The Decision goes to the core of her personal dignity and security of the person. Her family legitimately expected a decision in accordance with CSC’s timeframes. She says the delay has resulted in serious psychological distress and anxiety to herself and her family in a way that infringed her Charter right to security of the person: Charter, s 7; Boeyen v Canada (Attorney General), 2013 FC 1175 at paras 140-148.
(2) Unreasonable Decision [54] The Applicant submits that the Decision does not fall within the range of possible outcomes and is not defensible in light of the facts and law.
[55] The discretion for making PFV decisions is set out in CD 710-8 and the Standard Operating Practice 700-12. They provide that inmates are eligible for the PFV program unless they are:
At risk for family violence; Participating in unescorted temporary absences for family contact purposes; In a special handling unit; Recommended or approved for transfer to a special handling unit; or, In a disciplinary segregation at the time of the scheduled family visit.
[56] The Applicant says that she does not fall within any of the exceptions. The Decision was based upon other factors and so is unreasonable.
[57] First, the Applicant says that the evidence supports her claim that she has never been involved in spousal or family violence. There is no institutional suspicion or evidence of abusive behaviour in any of the Applicant’s visits or phone calls with her husband. She has never been charged with or convicted of an offence involving spousal or familial violence. There is no evidence to support the allegation that the Applicant was observed throwing things at her husband. It is not clear when the event is said to have taken place or whether anyone made any inquiries to determine the details or accuracy of the information. The Applicant’s husband and son have also denied any violence in the family.
[58] Second, the Applicant says that CSC has not taken all reasonable steps to ensure that the information in her file is accurate, up-to-date and as complete as possible: CCRA, s 24. The Decision should have assessed whether the Applicant currently poses a risk of spousal violence on the proven facts. The Deputy Commissioner should have conducted a de novo review to determine whether it was reasonable to rely upon the allegations in the A4D because the Applicant disputes the allegations. The Decision is supposed to assess her current risk of family violence but there is no evidence of any current concerns. There is simply a bare suspicion of past violence. The Applicant acknowledges that the murder she was convicted of was violent, but she says that it was nearly twenty-five years ago and there are no other proven allegations of violence. In addition, there is no suggestion in any of the documents or allegations that the Applicant poses a risk to her son, and yet the request to have PFVs with her son was also denied.
[59] Third, the Decision refers to the Applicant’s escape risk, but CD 710-8 does not provide risk of escape as a basis upon which to deny a PFV application. Regardless, the conclusion is unreasonable and is not based on any information that was before the Deputy Commissioner. It is clear from the A4D that the escape risk was not considered a serious risk.
[60] Fourth, the Decision refers the Applicant to the file correction process to address her concerns about the allegations of spousal violence but had the Deputy Commissioner seriously reviewed the entire file, she would have seen the Applicant’s efforts to have the file information corrected.
[61] Fifth, the Applicant says it is unreasonable to deny her participation in the PFV because she has not participated in programming for domestic violence. This is unreasonable because there is no evidence that she has ever committed acts of domestic violence. The Applicant points to the Court’s decision in Edwards v Canada (Attorney General), 2003 FC 1441 [Edwards] where the Court found it was unreasonable to deny an inmate access to PFVs until he completed a sex offender assessment when he had never been convicted of a sexual offence.
(3) De Novo Hearing [62] The Applicant says that the Deputy Commissioner erred in failing to conduct a de novo hearing in relation to her complaint that she be permitted to participate in the PFV program. The Court has held that each level of the grievance procedure is to be conducted as a hearing de novo in which the grievor is entitled to have her grievance heard afresh and to present new evidence: Hall, above, at para 35; Riley v Canada (Attorney General), 2011 FC 1226 at para 21 [Riley]; Tyrrell v Canada (Attorney General), 2008 FC 42 at paras 37-38 [Tyrrell]. The Deputy Commissioner erred in simply reviewing the Warden’s decision and response to the Applicant’s rebuttal: Hall, above. She failed to consider the Applicant’s submissions regarding the lack of compelling information regarding any history of family violence. If the Deputy Commissioner had actually reviewed the evidence in light of the Applicant’s submissions, she would have been confronted with the lack of substantiated evidence in regards to the domestic violence issue. The Deputy Commissioner also failed to consider whether the Applicant is currently at risk of committing family violence given her history of exemplary family visits.
[63] The Applicant asks that the Deputy Commissioner’s Decision be quashed and for a declaration that the grievance procedure in this case was not fair or effective due to the unjustified delays, a declaration that the delays infringed the her s 7 Charter rights, and an order of mandamus to order CSC to provide the Applicant with access to the PFV program.
B. Respondent (1) Procedural fairness [64] The Respondent submits that the delay in completing the final grievance does not constitute a breach of procedural fairness. The duty owed to the Applicant is on the low end of the spectrum: Sweet v Canada (Attorney General), 2005 FCA 51 at paras 34, 37; Yu v Canada (Attorney General), 2009 FC 1201 at para 27. It is an administrative decision and the impact on the Applicant is moderate because she can re-apply for PFVs.
[65] The Applicant complains about periods of time where nothing was done on her file, but the record reveals that the analyst was reviewing the claim, analyzing the underlying documentation and investigating the issues before determining what further information she required to respond to the grievances. The grievance response was then reviewed by the analyst’s manager and director, after which it was submitted to the Deputy Commissioner for a final decision.
[66] CD 081 provides that high-priority grievances will be answered in sixty days. However, where further time is required to adequately respond to a grievance, the grievor may be notified of the delay and the reasons for the delay. In accordance with CD 081, the Applicant was informed of each delay and the reasons for each delay. The delay did not render the process unfair: Ouellette v Canada (Attorney General), 2012 FC 801 at para 28; Wilson v Canada (Attorney General), 2012 FC 57 at paras 17-18; Gallant v Canada (Attorney General), 2011 FC 537 at paras 19-22. The Applicant was consistently informed of the need for additional time to provide a decision and the reasons for the same. Her submissions were fully considered and answered through the grievance process.
(2) De Novo Hearing [67] The Respondent agrees that a de novo review is required at each stage of the grievance process; however, a de novo review of an institutional head’s decision is not always required. Section 91 of the Regulations provides that the institutional head, or his or her delegate, is responsible for decisions relating to visits. See also CD 710-8, s 20. The Deputy Commissioner cannot determine the Applicant’s PFV application anew because it would usurp the institutional head’s authority as provided for under the statute. As a result, it was reasonable for the Deputy Commissioner to give deference to the review board and the Warden’s decision to deny the Applicant’s PFV application and to focus on whether the decision complied with law and policy: Spidel v Canada (Attorney General), 2012 FC 54 at para 30.
[68] The Respondent distinguishes the case law that the Applicant relies upon. In Hall, the governing legislation did not exclusively grant the power to make transfer decisions to the institutional head. The authority was granted to CSC generally. Consequently, the commissioner in Hall was statutorily empowered to make a decision on the transfer request anew. Similarly, the decisions in Tyrrell and Riley simply stand for the proposition that the grievance process requires each subsequent decision-maker within the grievance process to review each grievance in a de novo manner. The decision-maker must apply an independent analysis to all of the information before him or her, including any new evidence: Tyrrell, above, at paras 37-38; Riley, above, at para 21. It is insufficient for each subsequent decision-maker to simply agree with the decision below.
[69] The Deputy Commissioner did not simply review the decisions of the lower level grievance decision-makers. She conducted an independent analysis based on a comprehensive review of the information before her. It is clear that the Deputy Commissioner placed greater weight on the A4D, the Applicant’s need to complete programming, and the need for CSC to give paramount consideration to the protection of society. It is apparent that the Deputy Commissioner conducted a de novo assessment of the previous grievance proceedings but properly declined to substitute her own decision for that of those who are statutorily empowered to make the decision.
(3) Reasonableness [70] The Respondent submits that the Decision is reasonable. The Deputy Commissioner properly applied the applicable criteria to the facts of the Applicant’s case. Corrections officials must make decisions in keeping with the paramount principle of protecting society. CD 710-8 provides risk of family violence as a ground to refuse a PFV application.
[71] The Deputy Commissioner properly considered all of the evidence and submissions before her. It was reasonable for the Deputy Commissioner to note that CSC must consider all file information, including information of suspected spousal or familial violence, the Applicant’s Correctional Plan, and programming taken to date. The record shows that an analyst at the final grievance stage investigated the information on the Applicant’s suspected involvement in spousal assault and confirmed that the source of the information was police reports and other individuals recorded in her file. The Applicant’s argument essentially