Date: 20010510
Docket: T-1232-00
Neutral Citation: 2001 FCT 464
BETWEEN:
LLOYD GRANT WEDOW
Applicant
- and -
SOLICITOR GENERAL OF CANADA
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review in respect of the decision of Warden Mitch Kassen ("Warden"), of the Bowden Institution ("Institution") to deny reasonable telephone communications to the applicant.
FACTS
[2] The applicant is an inmate at Bowden Institution, near Innisfail, in the province of Alberta. On December 20, 1999, the applicant's telephone privileges were suspended for thirty days, from December 20, 1999 to January 20, 2000, because the applicant made a third party telephone call to his son, Damien Grant Piscopo, on December 19, 1999, contrary to regulations governing the use of inmate phones, as described in the inmate handbook.
[3] The applicant's grievance in respect of that suspension of telephone privileges was subsequently upheld at the third Level. That matter is not the subject of this application for judicial review.
[4] The applicant wrote to his Parole Officer, Adele Boychuck, on January 21, 2000 to request telephone access other than through the national inmate phone system ("Millennium Phone System" or "MPS") to contact his son. In his letter, the applicant explained that he could not phone his son directly by placing a collect call since his son's mother had a restriction on her telephone which prevented the acceptance of collect telephone calls.
[5] On February 8, 2000, the Warden, Mr. Kassen, wrote to the applicant and stated that the applicant's Unit Manager would respond to the applicant's concerns.
[6] On February 18, 2000, F. Wilson, the acting warden, confirmed that the applicant was not being denied telephone calls to his son but stated that third party calls would not be authorized nor would ITF phone calls be authorized since the circumstances did not constitute emergency, legal or exceptional criterion.
[7] The applicant filed a second level grievance claiming exceptional circumstances for the use of government phone services on February 21, 2000. The grievance was denied at the second level on March 28, 2000. The Deputy Commissioner stated that the applicant's telephone access was reinstated and that the fact that the applicant could not telephone his son's residence by way of a collect call through the MPS because the residence of his son had a toll restriction was not the responsibility of the Correctional Service of Canada ("CSC"). The second level grievance also stated that the toll restriction on the applicant's phone line did not constitute an emergency, legal or exceptional circumstance.
[8] The applicant's third level grievance was denied on June 2, 2000 as the applicant had telephone privileges through the MPS.
ISSUES
[9] 1. Who are the proper respondents in this matter?
2. Did the Warden err in denying the applicant reasonable telephone communications to his son?
ANALYSIS
1. Who are the proper respondents in this matter?
[10] Counsel for the respondent suggests that the style of cause should be amended to identify only the Solicitor General of Canada and the Attorney General of Canada as respondents, pursuant to the case law.
[11] Counsel for the applicant suggests that the Bowden Institution should remain as respondent.
[12] In my view, the Solicitor General of Canada and Attorney General of Canada are the proper respondents in this case, and the style of cause is amended to reflect that decision.
2. Did the Warden err in denying the applicant reasonable telephone communications to his son?
[13] The applicant contends that the decision of the Warden to deny reasonable telephone access infringe sections 2 and 12 of the Charter as well as the Corrections and Conditional Release Act. The applicant is of the view that the respondents have a duty to provide him with reasonable telephone access, other than through the MPS, in light of the fact that his son's mother have a telephone restriction which does not permit any collect calls.
[14] As for the respondents, they allege that the applicant has access, through the MPS, to the same phone privileges as are provided to inmates nationally. The respondents submit that no positive government action has been taken to limit the applicant's privileges and that by providing access to telephone through the MPS, they have discharged any duty they had towards the applicant.
[15] When he states the Warden has denied him reasonable telephone access, the applicant is in fact taking issue with the Warden's decision to not provide him with means of calling his son other than the MPS. With the MPS, inmates have to call collect. However, the applicant cannot call his son collect since his son's mother is not allowed to accept collect calls because of a restriction that was placed by the telephone company on her phone.
[16] Therefore, the issue, in the case at bar, is whether the Warden erred by not providing the applicant with another means of calling his son.
[17] The Warden's reasons for not providing the applicant with other means of calling his son are based on the fact that the applicant's son is not under his control and the applicant's situation is not an emergency, or a legal or exceptional circumstance that would permit departure from the Commissioner's Directive No. 085. It was suggested to the applicant that he contact his son through correspondence.
[18] Commissioner's directive No. 085 states:
14. National Headquarters shall be responsible for the selection, installation and maintenance of a national inmate telephone system.
15. Access to telephones, through an inmate telephone system, should be provided, on a fair and consistent basis, to help maintain family and community ties and to provide a direct link with families in the event of an emergency. To ensure consistency, standards for inmate access to telephones and the use of an inmate telephone system are provided in Annex "B".
[...]
18. Telephone communication is a part of the overall program of reintegration into the community, similar to visits and temporary absences.
19. Telephone calls for humanitarian purposes, such as illness, death in the family, or birth of a child, shall normally be provided without delay.
[19] The Inmate Handbook, December 1999, provides that "all calls must be made collect" and "that special arrangements may be made for emergency situations by contacting Unit Staff".
[20] Except for the Inmate Handbook, the parties have not provided further information as to where the respondent's authority to rely on the criteria of an emergency, or a legal or exceptional circumstance in order to depart from the Commissioner's Directive No. 085 is found.
[21] I agree with the respondent that the Warden did not deny reasonable telephone communications to the applicant since the applicant has access to the MPS. The problem that the applicant faces when trying to call his son is that his son's mother cannot accept collect calls.
[22] Therefore, I have to examine whether the respondents have a duty to make arrangements for the applicant to be able to contact his son with other means than the MPS.
[23] Section 71 of the Corrections and Conditional Act states:
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.
[24] Commissioner's Directive No. 085 provides for access to telephones, through an inmate telephone system. This duty has been met by the respondents and it does not seem that the respondents have the duty to provide further arrangements. Furthermore, the respondents' duty under section 71 of the Corrections and Conditional Release Act is discharged by the telephone system and also by the fact that contact through correspondence is available to the applicant.
[25] I do not believe that the respondents, under section 71 of the Corrections and Conditional Release Act, have to provide the applicant with further telephone arrangements. On this aspect, I believe the Warden did not err when he denied the applicant's request for special arrangements.
[26] It is reasonable to implement a directive that provides for telephone calls through MPS given the huge number of calls made by the vast majority of inmates.
[27] Nevertheless, the applicant cannot do more than he does to reach his son; he is in jail and has much less means to find alternatives to the MPS system.
[28] The application of new technologies implies that inmates have to deal with registered voice and have no possibility to reach an operator to allow a third party to accept to pay the collect call, as it was the case before implementation of new technologies; machines are now talking to machines.
[29] But, there are exceptions and subsection 25(d) of the Commissioner's Directive No. 085 provides:
The institutional head or designate may authorize the use of government telephone network lines by inmates for emergency situations such as serious family illness or death, or for any other special circumstances.
[30] Pursuant to that section, the applicant was allowed to call the Workmen's Compensation Board, forty times, Emo Computing, eight times, and other government agencies on many occasions.
[31] Nevertheless, the Warden decided that a call to his son was not a "special circumstance" under subsection 25 (d) of the Commissioner's Directive No. 085.
[32] The consequences of that are tragic and the applicant could not reach his son, who is now six years old, for sixteen months.
[33] This is a clear example of a miscellaneous issue that becomes a monster.
[34] The Warden has a discretion and I find that if one uses it in a capricious manner and makes an error, the Court's intervention is justified.
[35] Therefore, the decision by the Warden on June 2, 2000, is set aside, and the matter is referred back to the Warden for reconsideration in light of this decision.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 10, 2001
Email this Content