Date:
20121218
Docket:
T-1981-11
Citation:
2012 FC 1496
Ottawa, Ontario,
December 18, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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DR. V.I. FABRIKANT
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Applicant
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and
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HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, CORRECIONAL SERVICE CANADA
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, Dr. Fabrikant, is currently incarcerated in a federal penitentiary,
where he is serving a sentence of life imprisonment for four counts of first
degree murder, a single count of attempted murder and two counts of forcible
confinement. While in prison, Dr. Fabrikant has authored numerous articles that
have been published in a variety of scientific journals. It appears that in the
past Dr. Fabrikant was able to send electronic copies of his articles on
diskette to members of his family, whom he states forwarded the diskettes to
the journals to facilitate publication. He asserts that a new article he wrote
was accepted for publication in March 2010, based on a typewritten draft that
he submitted, but claims that the journal that accepted it requires that he
provide the article in electronic format for it to be published. Dr. Fabrikant
alleges that he is prevented from sending the diskette of this article to
members of his family or to the journal by virtue of a Bulletin issued in
December 2009 by the Acting Director, Security of Correctional Services Canada
[CSC]. The Bulletin prohibits inmates from sending any “form of electronic
media through the mail to destinations outside of CSC institutions” and
constitutes an amendment to one of the Commissioner’s Directives issued under
section 98 of the Corrections and Conditional Release Act, SC 1992, c 20
[CCRA].
[2]
Dr.
Fabrikant was previously declared by this Court to be a vexatious litigant, and
thus leave was required for him to institute this judicial review application.
Such leave was granted by Justice Bédard of this Court on May 26, 2011. In this
application for judicial review, Dr. Fabrikant seeks to have the prohibition
set out in the Bulletin declared to violate section 2(b) 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 [the
Charter] as a contravention of his constitutionally-guaranteed right to
freedom of expression. He requests an order allowing him to mail computer
diskettes to his family, enforceable immediately, regardless of whether or not
the respondent appeals from any order that I might issue in his favour.
[3]
The
respondents, for their part, argue that this application should be dismissed as
Dr. Fabrikant has failed to pursue a grievance in respect of the refusal to
allow him to send a diskette to his family that he could have brought under
Commissioner’s Directive 081, Offender Complaints and Grievances, dated
November 29, 2011, as provided for by section 90 of the CCRA [Commissioner’s
Directive 081]. The respondents submit that the Charter issues raised in
this application ought to have been determined, at least in the first instance,
through the grievance procedure. In the alternative, the respondents assert
that the prohibition on forwarding information via electronic media set out in
the Bulletin does not offend section 2(b) of the Charter because the
Bulletin merely limits the manner in which inmates may communicate with those
outside CSC. The respondents argue in this regard that restrictions on the
method of expression – as opposed to restrictions on the content of an
expressive act – do not violate section 2(b) of the Charter. In the
further alternative, the respondents submit that any restrictions on inmates’
freedom of expression in the Bulletin are reasonable limits prescribed by law
that are demonstrably justified in a free and democratic society, within the meaning
of section 1 of the Charter, and are thus allowable.
[4]
During
the hearing of this application (which was conducted by way of videoconference
with Dr. Fabrikant participating from the penitentiary), Dr. Fabrikant argued
that I should disregard the Affidavit of Guy Campeau, filed by the respondents,
because it is virtually identical to an earlier affidavit filed in another
application by Dr. Fabrikant. Due to the similarities between the two
affidavits, Dr. Fabricant submits that Mr. Campeau’s Affidavit was drafted by
counsel for the respondents and should be struck as offending Rule 82 of the Federal
Courts Rules, SOR/98-106. Rule 82 provides that a solicitor shall not
depose to an affidavit and present argument to the Court based on the affidavit
except with leave of the Court.
[5]
In
response to this submission, counsel for the respondents noted that the
previous affidavit was sworn by Mr. Campeau’s predecessor but conceded that the
two affidavits in question are virtually, if not totally, identical. He stated,
though, that Mr. Campeau read his predecessor’s affidavit, concurred completely
with it, and indicated he was prepared to swear to the veracity of its contents
in his own affidavit, which is what occurred. The respondents argue that as Mr.
Campeau replaced the previous deponent in the position of CSC’s Director,
Intelligence Operations, Policy and Programs, Correctional Operations and
Program Sector, it is to be anticipated that the two deponents would possess
similar knowledge. The fact that the two affidavits are identical in all
material respects, according to the respondents, does not render Mr. Campeau’s Affidavit
inadmissible nor offend Rule 82.
[6]
The
respondents are correct in this assertion and the fact that the two affidavits
are virtually – if indeed not completely – identical does not offend Rule 82
nor render Mr. Campeau’s Affidavit inadmissible. I note that it is common
practice for counsel to draft affidavits, putting the words and evidence of a
deponent onto paper. Provided counsel behave ethically in doing so – and the
evidence is that of the deponent and not of counsel – there is nothing improper
in an affidavit’s being drafted by counsel. There is no suggestion here that
Mr. Campeau’s Affidavit is anything other than his own evidence. Thus, there is
no basis to strike it, and it in no way offends Rule 82.
[7]
Insofar
as concerns the other issues raised by the parties, I need only consider the
first argument advanced by the respondents since, for the reasons set out
below, I have determined that this application for judicial review will be
dismissed because the applicant ought to have pursued his claim through the
grievance process, which was available to him under Commissioner’s Directive
081.
[8]
In
this regard, the record establishes that Dr. Fabrikant was denied the right to
mail diskettes to his family members in 2008 and filed two grievances under
Commissioner’s Directive 081 in respect of that denial. Although these
grievances were denied at the third level of the grievance procedure on May 4,
2009, the upshot of them was that Dr. Fabrikant was allowed to forward
diskettes containing his articles to his family, twice per year, as a personal
effect through the Admissions and Discharge department, as opposed to mailing
the diskettes to his family via the Visits and Correspondence department.
[9]
With
respect to the 2010 paper, Dr. Fabrikant submitted a request to be allowed to send
the diskette containing his article to members of his family, which was denied
on June 7, 2010. In denying the request, CSC relied on the applicable
Commissioner’s Directive. Unlike 2008, however, Dr. Fabrikant chose not to file
any grievance in respect of the 2010 denial and instead sought to make the
present judicial review application to this Court.
[10]
It
would have been possible for Dr. Fabrikant to grieve this denial, like the
previous denials. The right of inmates to present grievances is set out in
sections 90-91 of the Corrections and Conditional Release Act, SC 1992,
c 29, which provide:
Grievance
procedure
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).
91. Every offender shall have complete access to the offender grievance
procedure without negative consequences.
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Procédure
de règlement
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.
91. Tout
délinquant doit, sans crainte de représailles, avoir libre accès à la
procédure de règlement des griefs.
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As noted above, Commissioner’s
Directive 081 outlines the detailed procedure to be followed for inmate
grievances.
[11]
Dr.
Fabricant could well have raised the Charter issues he now seeks to put
before this Court in a grievance, it being settled that such issues may be
decided under the CSC grievance procedure (see e.g. Ewert v Canada (Attorney
General), 2007 FC 13; Bouchard v Canada (Attorney General), 2006 FC
775). Indeed, the Supreme Court of Canada has recently confirmed the ability of
administrative tribunals which decide questions of law to make Charter
determinations; in R v Conway, 2010 SCC 22, Justice Abella referenced
“the well-established principle that an administrative tribunal is to decide
all matters, including constitutional questions, whose essential factual
character falls within the tribunal’s specialized statutory jurisdiction” (at
para 79). Thus, the issues raised in this application for judicial review could
have been raised by Dr. Fabrikant in a grievance under Commissioner’s Directive
081.
[12]
Applications
for judicial review engage the discretionary jurisdiction of the reviewing
court, which may decline to hear a judicial review application in appropriate
circumstances, including, notably, where another procedure for redress is
available. The effect of the right to institute grievances on the availability
of judicial review of CSC decisions was recently considered by Justice Bédard
in Reda v Attorney General, 2012 FC 79, [2012] FCJ No 82 [Reda],
where she declined to hear a judicial review application in respect of a
challenge by a prisoner to place him in a medium security institution because
he had not exhausted his right to grieve the decision. Reda contains a
useful review of the principles applicable in a case such as the present, where
an available grievance remedy was not pursued by the inmate. There, Justice Bédard
wrote as follows:
13 It has long been established that the
Court may exercise its discretion to not hear an application for judicial
review of a decision if an adequate alternative remedy exists that the
applicant could have pursued before applying to Court (Harelkin v University
of Regina, [1979] 2 S.C.R. 561, 26 NR 364. In C.B. Powell Ltd. v Canada (Border Services Agency), 2010 FCA 61, 200 NR 367, the Federal Court of Appeal
clearly set out the doctrine of exhaustion:
31 Administrative law judgments and textbooks
describe this rule in many ways: the doctrine of exhaustion, the doctrine of
adequate alternative remedies, the doctrine against fragmentation or
bifurcation of administrative proceedings, the rule against interlocutory
judicial reviews and the objection against premature judicial reviews. All of
these express the same concept: absent exceptional circumstances, parties
cannot proceed to the court system until the administrative process has run its
course. This means that, absent exceptional circumstances, those who are
dissatisfied with some matter arising in the ongoing administrative process
must pursue all effective remedies that are available within that process; only
when the administrative process has finished or when the administrative process
affords no effective remedy can they proceed to court. Put another way, absent
exceptional circumstances, courts should not interfere with ongoing
administrative processes until after they are completed, or until the
available, effective remedies are exhausted.
32 This prevents fragmentation of the administrative
process and piecemeal court proceedings, eliminates the large costs and delays
associated with premature forays to court and avoids the waste associated with
hearing an interlocutory judicial review when the applicant for judicial review
may succeed at the end of the administrative process anyway: see, e.g., Consolidated
Maybrun, supra at paragraph 38; Greater Moncton International
Airport Authority v. Public Service Alliance of Canada, 2008 FCA 68at
paragraph 1; Ontario College of Art v. Ontario (Human Rights Commission)
(1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the
administrative process will a reviewing court have all of the administrative
decision-maker's findings; these findings may be suffused with expertise,
legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated
Maybrun, supra at paragraph 43; Delmas v. Vancouver Stock
(1994), 119 D.L.R. (4th) 136 (B.C.S.C.), aff'd, (1995), 130 D.L.R. (4th) 461
(B.C.C.A.); Jafine v. College of Veterinarians (Ontario) (1991), 5 O.R.
(3d) 439 (Gen. Div.). Finally, this approach is consistent with and supports
the concept of judicial respect for administrative decision-makers who, like
judges, have decision-making responsibilities to discharge: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph 48.
[13]
Similar
conclusions have frequently been reached by this Court in circumstances where
inmates sought to judicially review CSC decisions without first addressing
their concerns through the grievance procedure. For instance, in Spidel v Canada (Attorney General), 2010 FC 1028, [2010] FCJ No 1292, Justice Phelan declined to
allow an application for judicial review by a prisoner to proceed because the
prisoner had not waited for a decision with respect to his grievance. Justice
Phelan noted at paragraph 12 that:
The Court’s
discretion with respect to hearing a judicial review where there is an adequate
alternative remedy is subject to consideration of whether there are exceptional
circumstances which might otherwise require the Court to hear a matter despite
the existence of an adequate alternative remedy.
[Citations
omitted.]
[14]
Additionally,
in March of this year, Justice Martineau dismissed a motion for leave to
institute a proceeding by Dr. Fabrikant regarding the seizure of his personal
computer by CSC. Justice Martineau found that Dr. Fabrikant was impermissibly
attempting to challenge a grievance decision of CSC in an unrelated proceeding
(Fabrikant v Canada, 2012 FC 375, [2012] FCJ No 383).
[15]
The
case law thus establishes that, absent exceptional circumstances which would
render the grievance procedure available to inmates ineffective, this Court
should decline to hear judicial review applications in respect of matters that
may be the subject of a grievance under Commissioner’s Directive 081.
[16]
The
fact that Dr. Fabrikant’s claims are Charter claims represents a further
reason why this Court should defer to the grievance process. In this regard, the
Supreme Court of Canada has indicated that it is essential that constitutional
claims and, in particular, Charter claims be decided based on an
adequate factual record (see MacKay v Manitoba, [1989] 2 SCR
357, [1989] SCJ No 88).
[17]
The
record before the Court in this matter is far from fulsome. There is little
evidence regarding the nature and timing of the requirements of the scholarly
journal for an electronic version of Dr. Fabrikant’s article and relatively
limited evidence regarding the justification for the Bulletin. A more fulsome
record might well be developed through the grievance process if the matter were
grieved. More importantly, because Dr. Fabrikant has not grieved, CSC has not
had the opportunity to rule on whether the prohibition in the Bulletin would
allow Dr. Fabrikant to nonetheless continue to provide his diskettes to members
of his family as a personal effect twice per year. The Bulletin prohibits
inmates from forwarding diskettes (or other electronic media) via mail. It is
unclear whether it likewise prohibits forwarding diskettes to family members as
part of an inmate’s personal effects. Whether such prohibition exists is a central
fact relevant to determining both whether there is a prima facie breach
of section 2(b) of the Charter and to determining whether, if such
breach exists, it is nonetheless less justifiable under section 1 of the Charter.
This represents a further reason why I have determined that these issues should
be decided in the first instance through the grievance process as this would
allow for an appropriate record to be compiled.
[18]
Thus,
for these reasons, this application for judicial review is dismissed. As
concerns costs, there is no reason to derogate from the general rule that costs
follow the event in this case, particularly in light of the similarity between
this matter and that dismissed by Justice Martineau for similar reasons earlier
this year. Thus, the respondents are entitled to their costs. In the exercise
of my discretion, I believe it to be preferable to fix them in a lump sum
amount and determine the amount of $1500.00 to be reasonable, in light of the
complexity of the issues and length of the hearing.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
This application
for judicial review is dismissed, with costs, which are fixed in the amount of
$1500.00.
"Mary J.L.
Gleason"
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