Bagshaw v. Canada (Attorney General), 2012 FC 291

• Judge: Near, J.
• Court: Federal Court (Canada)
• Case Date: January 10, 2012
• Jurisdiction: Canada (Federal)
• Citations: 2012 FC 291;(2012), 406 F.T.R. 199 (FC)

Bagshaw v. Can. (A.G.) (2012), 406 F.T.R. 199 (FC)

MLB headnote and full text

Temp. Cite: [2012] F.T.R. TBEd. MR.019

David Bagshaw (applicant) v. The Attorney General of Canada (respondent)

(T-356-11; 2012 FC 291)

Indexed As: Bagshaw v. Canada (Attorney General)

Federal Court

Near, J.

March 6, 2012.

Summary:

Bagshaw (the applicant) was convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for ten years. Before being placed in penitentiary, his counsel sought an exemption under Commissioner's Directive (CD-705-7), s. 12, from the Correctional Service of Canada's (CSC's) policy of placing persons convicted of murder in a maximum security facility for at least the first two years of federal incarceration. Section 12 provided for an exceptional override of the CSC policy at the discretion of the Assistant Commissioner, Correctional Operations and Programs. The Deputy Commissioner notified the applicant by letter that the decision-making authority for offender security classification and placement remained with the Institution Warden. The inmate applied for judicial review.

The Federal Court dismissed the application. The Deputy Commissioner's letter was in line with CD-705-7 along with CSC internal policies and the applicant could pursue any remaining concerns regarding his placement through the internal grievance process.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - [See Prisons - Topic 1027 ].

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of convenient or adequate alternative remedy - [See Prisons - Topic 1027 ].

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate (delegatus non potest delegare) - [See Prisons - Topic 1027 ].

Prisons - Topic 1004

Administration - General - Commissioner's directives or instructions - Effect of - [See Prisons - Topic 1027 ].

Prisons - Topic 1027

Administration - Powers re prisoners - Classification - Before being placed in penitentiary, the applicant sought an exemption under Commissioners's Directive (CD-705-7), s. 12, from the Correctional Service Canada's (CSC's) policy of placing murder convicts in a maximum security facility for at least the first two years - Section 12 provided for an exceptional override of the CSC policy at the Assistant Commissioner's discretion - The Deputy Commissioner notified the applicant that the decision-making authority for offender security classification and placement remained with the Institution Warden - The inmate applied for judicial review - The Federal Court dismissed the application - There was no improper sub-delegation of authority - The doctrine of delegatus non potest delegare did not apply as this matter involved administrative powers - In any event, the applicant had access to internal remedies (i.e., inmate grievance process) - See paragraphs 23 to 49.

Prisons - Topic 1131

Administration - Prisoners' rights - Judicial review or grievance - Before being placed in penitentiary, the applicant sought an exemption under Commissioner's Directive (CD-705-7), s. 12, from the Correctional Service Canada's (CSC's) policy of placing murder convicts in a maximum security facility for at least the first two years - Section 12 provided for an exceptional override of the CSC policy at the Assistant Commissioner's discretion - The Deputy Commissioner notified the applicant that the decision-making authority for offender security classification and placement remained with the Institution Warden - The inmate applied for judicial review - The Federal Court, as to standard of review, held that the standard of correctness applied to issues of law, including the interpretation of the Corrections and Conditional Release Act and Regulations and of the Commissioner's Directives, as well as to the issue of procedural fairness - See paragraphs 20 to 22.

Cases Noticed:

McDougall v. Canada (Attorney General) (2011), 419 N.R. 304; 2011 FCA 184, refd to. [para. 21].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 22].

Kindratsky v. Canada (Attorney General) (2006), 303 F.T.R. 312, refd to. [para. 31].

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; 14 N.R. 285, refd to. [para. 32].

Northeast Bottle Depot Ltd. et al. v. Beverage Container Management Board (Alta.) et al. (2000), 269 A.R. 248; 2000 ABQB 572, refd to. [para. 33].

Jamieson v. Commissioner of Corrections (1986), 2 F.T.R. 146 (T.D.), refd to. [para. 34].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184; 193 D.L.R.(4th) 357 (F.C.A.), refd to. [para. 34].

Bouchard v. Canada (Attorney General), [2006] F.T.R. Uned. 955; 2006 FC 775, refd to. [para. 35].

Marachelian v. Canada (Attorney General), [2001] 1 F.C. 17; 187 F.T.R. 238 (T.D.), refd to. [para. 39].

Gates et al. v. Canada (Attorney General) (2007), 316 F.T.R. 82; 2007 FC 1058, refd to. [para. 41].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 47].

Statutes Noticed:

Commissioner's Directives - see Corrections and Conditional Release Act Regulations (Can.).

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 30(1), sect. 30(2) [para. 14].

Corrections and Conditional Release Act Regulations (Can.), SOR/92-620, sect. 17, sect. 18 [para. 15].

Corrections and Conditional Release Act Regulations (Can.), Commissioner's Directives, CD-705-7, sect. 11 [para. 16]; sect. 12 [para. 17].

Counsel:

John L. Hill, for the applicant;

Michael J. Sims, for the respondent.

Solicitors of Record:

John L. Hill, Cobourg, Ontario, for the applicant;

Michael J. Sims, Department of Justice, Toronto, Ontario, for the respondent.

This application was heard in Toronto, Ontario, on January 10, 2012, before Near, J., of the Federal Court, who delivered the following decision on March 6, 2012.