Date:
20121206
Docket: T-1418-11
Citation:
2012 FC 1440
Ottawa, Ontario, December
6, 2012
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
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MICHAEL AARON SPIDEL
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Applicant
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and
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CANADA (ATTORNEY GENERAL)
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Michael
Aaron Spidel [the Applicant] brings this application for judicial review (the
Application) pursuant to section 18.1 of the Federal Courts Act, RSC
1985, c F-7. At issue is a third level grievance decision dated July 25, 2011 in
which a delegate of the Commissioner of Correctional Services of Canada [the
Commissioner and CSC] denied the Applicant’s grievance. The Applicant is
self-represented and appeared in person to present his submissions.
[2]
Commissioner’s
Directive [CD] 566-1 Control of Entry to and Exit from Institutions is the
CSC policy which establishes standards for controlling the removal of items
from CSC institutions. The relevant provision of CD 566-1 states:
39. Visitors and volunteers shall normally not
remove items from the institution during socials or group activities. If items
are to be removed, prior authorization from the Institutional Head or their
designate shall be given.
BACKGROUND
[3]
On
June 30, 2010, officials at CSC’s Ferndale Institution [Ferndale] issued a Communiqué
to inmates [the Policy] which stated in part:
To ensure compliance with CD 566-1 Control of
Entry to and Exit from Institutions, please be advised that effective
immediately, inmate visitors are no longer permitted to enter Ferndale
Institution except at the designated visiting or PFV [Private Family Visit]
times. As well, no items are permitted to be brought in or taken out except
when pre-authorized in writing by the Warden. This is not a change but
enforcement of existing policy. [my emphasis]
[4]
The
Applicant was an inmate at Ferndale when the Policy was issued. However, on
August 13, 2010 he was sent to the Mission Institution. Thereafter, he was
transferred to Kwickwexwelhp Minimum-Security Healing Village [Kwickwexwelhp]
in Harrison Mills, British Columbia. At the time of the hearing of the
Application in July of 2012, the Applicant was out of custody on conditional
release in the community.
[5]
On
July 16, 2010, while at Kwickwexwelhp, the Applicant submitted a grievance to
which he attached letters and other materials alleging that the Policy had been
applied so that it altered the existing practice at Ferndale of allowing
inmates to send legal documents to their legal counsel or to the courts through
a community contact person [a Community Contact], such as a spouse. Those
individuals would pick up the documents at Ferndale and then deliver or fax
them to recipients outside the institution. After the Policy was issued,
inmates were allegedly prohibited from conveying legal documents through a
Community Contact. According to the Applicant the Policy meant, in practice,
that inmates were required to use less convenient and/or higher cost methods of
sending legal documents such as fax, courier and mail.
[6]
The
Applicant’s grievance was denied at the first level by Warden Bill Thompson, on
August 24, 2010 and on February 24, 2011, the second level grievance was denied
by the Assistant Deputy Commissioner of Institutional Operations.
[7]
The
Applicant’s grievance was also denied at the third level. That decision, which
is the one presently under review, was issued on July 25, 2011, [the Decision]
by Acting Senior Deputy Commissioner Ross Toller [the ASDC].
THE DECISION
[8]
The
ASDC reviewed the background to the Applicant’s grievance and noted that CSC is
obliged to provide inmates with reasonable access to legal counsel and the
courts pursuant to paragraph 1 of Commissioner’s Directive 084 Inmates
Access to Legal Assistance and the Police. He stated that staff at Ferndale
had been consulted and had confirmed that, in the past, Community Contacts had
been allowed to enter the institution outside visiting hours to pick up
packages left by inmates and that the Policy had been issued to address that
issue.
[9]
The
ASDC went on to find that “[a]lthough your wife is no longer permitted to pick
up documents to mail outside the institution, you are still given reasonable
access to the Courts.” He identified three different ways that inmates at Ferndale could send out legal documents to “privileged correspondents”, who included
judges of Canadian courts, the registrars of those courts, and legal counsel.
Inmates could send these documents through the mail or by courier or, in
exceptional circumstances, institutional staff would facilitate sending the
documents by fax.
[10]
It
appears that the ASDC’s conclusion that the Applicant’s wife was no longer
permitted to pick up documents at Ferndale was incorrect. The Policy does not
prohibit the use of Community Contacts, it merely states that “no items are
permitted to be brought in or taken out except when pre-authorized in writing
by the Warden.” In oral submissions, Respondent’s counsel confirmed that wives
were permitted to take legal documents out of Ferndale if authorized to do so
by the Warden.
THE ISSUES
[11]
The
Respondent raised a preliminary issue:
1.
Should
the Application be dismissed because the issues raised by the Applicant are
moot?
[12]
The
Applicant raised the following issues:
1. Was the Decision
unreasonable?
2. Did the ASDC breach
the Applicant’s Charter rights by acting in a manner that was contrary
to law?
DISCUSSION
Issue 1 Should
the Application be dismissed because the issues raised by the Applicant are
moot?
[13]
The
Respondent submits that the raison d’être for the Application has disappeared
because the Policy only concerns inmates at Ferndale. Since the Applicant is no
longer an inmate at Ferndale, the Respondent says that the outcome of this
judicial review will have no practical effect on him and that the Application should
therefore be dismissed.
[14]
The
Applicant made no written submissions on the issue of mootness. However, at the
hearing he indicated that the issue was not moot because he could be
reincarcerated at Ferndale. As well, he suggested that standing and not mootness
was the important issue. However, neither party made any submissions dealing
with standing.
DISCUSSION
[15]
The
following two-part test for mootness was established by the Supreme Court in Borowski v
Canada (Attorney General), [1989] 1 S.C.R. 42:
a) Has
the “tangible and concrete” dispute between the parties disappeared?
b) Ought
the Court to exercise its discretion to hear the matter in any event?
[16]
It
is clear that the central issue raised by the Applicant during the grievance
process – the effect of the Policy on his access to legal services and the
courts – no longer represents a tangible and concrete dispute between the
parties. The Policy, which applies to and affects only visitors and inmates at Ferndale, does not apply to or affect the Applicant because he is no longer incarcerated
at that institution. Accordingly, the Application is moot.
[17]
The
next issue is whether I should nevertheless exercise my discretion to hear the
matter.
[18]
At
the hearing of this Application, the Applicant identified the following litigation
in which he and/or other inmates at Ferndale were involved when the Policy was
announced:
i. Mr.
Spidel was before the Federal Court because he had been denied permission to
stand in an inmate election.
ii. Mr.
Mapara and Mr. Spidel had applied to the British Columbia Supreme Court for a
writ of habeas corpus. Mr. Mapara was responsible for handling that
proceeding.
iii. Mr. McDougall
had an application before the Federal Court challenging Correctional Services
Canada’s national visiting policy.
[19]
Mr.
Spidel’s allegation is that this case raises an access to justice issue. He
acknowledges that the Policy does not block inmates’ access to the courts but
says that it obstructs such access. However, for the reasons which follow, I
have concluded that the evidence adduced is not sufficient to support this
allegation.
[20]
The
only evidence of the application of the Policy is a request for a gate pass for
legal documents made by Mr. Mapara on July 4th and stamped
“received” on July 5, 2010. The Warden was away over the July 1st
long weekend and the request was therefore considered by Tannis Kinney, the
Assistant Warden.
[21]
The
request read:
I would like to make arrangements
for some legal documents to be picked up by my wife, who is my authorized legal
agent for my court matters before the Supreme Court of BC. These documents are
expected to be ready for pick up on or before the 12th of July 2010
for delivery to the courts no later than July 13, 2010. Thank you in advance.
[22]
The
reply read:
Mr. Mapara,
I am replying on behalf of the
Warden who is currently away. As I discussed with Mr. Spidel at the meeting you
were unable to attend, there is a process in place for sending out legal
documents. Documents can be sent through the mail or by courier. In exceptional
circumstances documents can also be faxed. Staff are aware of the legal
timeframes with respect to court documents and will assist in expediting the
Institutional Transfer of Funds process so that timely delivery occurs. Further
to our conversation this date, I spoke with Ms. Sokhansarj [a lawyer with the
Department of Justice] and she advised that she was unaware of any further
filing which would be required upon receiving the respondent’s affidavit. As
for dates, that should be clarified with your lawyer.
[23]
Unfortunately,
there is no evidence about whether on his return the Warden gave his consent
and allowed Mr. Mapara’s wife to collect the documents. Further, there is no
evidence about whether, and if so how and when, Mr. Mapara’s documents
reached the Court.
[24]
It
is also significant that the Applicant filed his grievance independently,
rather than submitting a group grievance. Such a grievance might have shown
that obstructive conduct was being experienced by other inmates at Ferndale. Neither Mr. Mapara nor Mr. McDougall joined the Applicant in this proceeding.
Section 45 of CSC Commissioner’s Directive 81 – Group Complaints or
Grievances provides that:
45. Complaints or grievances may be submitted by a
group of grievers with respect to one or more common problems. The submission
must be signed by all grievers involved. One griever must be designated to
receive the answer for the group.
[25]
In
the absence of a group grievance there is no reason to believe that the Policy
is causing problems for inmates who are still at Ferndale.
[26]
For
all these reasons, and notwithstanding the Applicant’s speculation that he
might someday return to Ferndale, I have concluded that I should not exercise
my discretion to decide the merits of the Application.
[27]
In
these circumstances it is unnecessary to address the issues raised by the
Applicant.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
Application for judicial review is hereby dismissed.
“Sandra
J. Simpson”
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