Pawliw v. Canada (Attorney General), 2007 FC 614

 

Date: 20070608

Docket: T-1003-07

Citation: 2007 FC 614

Ottawa, Ontario, June 8, 2007

PRESENT:     The Honourable Mr. Justice Simon Noël

 

BETWEEN:

GORDON MICHAEL PAWLIW

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

 

[1]               The Applicant, an inmate at Mission Institution, British Columbia, is seeking injunctive relief preventing the Respondent from enforcing a disciplinary sentence imposed against him pursuant to his conviction for possession of an unauthorized item, contrary to Section 40(j) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”).  In summary, the Applicant is asking this Court to stay the effect of the sentence placing him in segregation for 15 days without tobacco.

 

I.          The Facts

 

[2]               The Correctional Service of Canada (CSC)’s policy on second-hand smoke prohibits smoking inside federal correctional institutions.  Mission Institution has also implemented its own smoking policy, which prohibits smoking indoors.  Inmates are, however, allowed to smoke outside in designated smoking areas.

 

[3]               The evidence shows that all inmates at Mission Institution have been advised of the disciplinary sanctions to which they may be subject if they do not adhere to the prohibition on smoking indoors.  During most hours of the day, inmates are free to go outdoors to smoke in one of the designated smoking areas on the grounds of Mission Institution.  The only times when inmates are not allowed to smoke are during daily “lock-ups”, which occur at approximately the following times:

a)                  from 22:00 hours to 7:10 hours;

b)                  from 10:45 hours to 12:00 hours; and

c)                  from 15:45 hours to 16:15 hours.

Inmates cannot smoke during “lock-ups” because they must be inside during these times and smoking is prohibited indoors.

 

 

 

[4]               On April 11, 2007, Mr. Pawliw was charged with his fourteenth disciplinary offence for violating Mission Institution’s indoor smoking prohibition.  On that day, at approximately 14:05 hours, a CSC official had found him smoking in his cell.  Consequently, Mr. Pawliw was charged with wilfully disobeying a written rule governing the conduct of inmates, contrary to Section 40(r) of the CCRA (the “Initial Charge”).

 

[5]               On April 26, 2007, Mr. Pawliw pleaded guilty to the initial charge and was sentenced to 20 days in cell lock-up from 19:00 hours to 7:30 hours.  In addition, Mr. Pawliw was not allowed to have tobacco in his possession between 19:00 hours and 7:30 hours during the 20 days of his disciplinary sentence (the “Initial Sentence”).

 

[6]               On May 4, 2007, while Mr. Pawliw was still serving the initial sentence, tobacco was found in his cell after 19:00 hours.  Mr. Pawliw was once again charged with a disciplinary offence, this time for possession of an unauthorized item, contrary to Section 40(j) of the CCRA (the “Subsequent Charge”).

 

[7]               On May 24, 2007, Mr. Pawliw was convicted of the subsequent charge by an independent Chairperson (the “ICP”) and sentenced to 15 days in segregation without tobacco (the “Subsequent Sentence”).

 

[8]               On May 28, 2007, Mr. Pawliw was placed in segregation pursuant to the subsequent sentence.

 

[9]               Between the day the subsequent sentence was imposed (May 24, 2007) and the day he was placed in segregation (May 28, 2007), Mr. Pawliw did not request to be seen by the Health Care staff at Mission Institution.

 

[10]           All inmates in segregation spend the day in their cells, except for one hour a day when they are allowed into the segregation yard for exercise.  Inmates in segregation, like all inmates at Mission Institution, are not allowed to smoke while in their cells.

 

[11]           Mr. Pawliw, like all inmates in segregation, is seen daily by a nurse employed at Mission Institution.  Since he has been in segregation, Mr. Pawliw has not requested any smoking cessation aids from the nurse, nor has he reported any health problems related to the fact that he has stopped smoking.

 

[12]           The evidence shows that the Applicant was allowed to smoke one cigarette on May 31, 2007.  Since then, he has been allowed to roll a couple of cigarettes once a day.  Thus, the subsequent sentence has been adapted to accommodate the Applicant.

 

[13]           Mr. Pawliw will be released from segregation on June 11, 2007.

 

 

 

II.        Points in issue

 

[14]           The issue before the Court on this motion is whether the Applicant has met the requirements of the tripartite test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. The Attorney General of Canada et al., [1995] 3 S.C.R. 199 [RJR MacDonald]: that there is a serious issue to be tried; that the Applicant would suffer irreparable harm; and that the balance of convenience lies in the Applicant’s favour.

 

III.       Analysis – the tripartite test

 

[15]           Having reviewed the parties’ records and heard their oral submissions, I conclude that even though the Applicant raises a serious issue (tobacco as an unauthorized item), he has not successfully demonstrated that he suffers irreparable harm.  Also, the balance of convenience favours the Respondent.  Since the tripartite test requires that each of the elements of the test be met,  consequently, the Motion to stay the subsequent sentence is dismissed.

 

[16]           In RJR Macdonald, the Supreme Court explained that irreparable harm is a very high threshold, Justice Sopinka and Justice Cory wrote:

"Irreparable" refers to the nature of the harm suffered rather than its magnitude.   It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. 

 

 

Also of noteworthiness, Justice Shore, in Radji v. Canada (M.C.I.), 2007 FC 100, cited German Suels v. Solicitor General of Canada (IMM-6418-04; unreported) wrote the following about the threshold of irreparable harm:

For the purpose of a stay of removal, irreparable harm is a very strict test. Irreparable harm is very grave. The evidence in support of irreparable harm must be clear and non-speculative; the Court must be satisfied that irreparable harm will occur if the relief is not granted.

 

[17]           This being said, the Applicant submits that irreparable harm exists because if this stay is not granted, the matter will be moot when the Applicant’s judicial review application is heard.  In other words, the Applicant argues that as he is only in solitary confinement for another 4 days, a finding that the cigarette prohibition was invalid, in the future, will be of no practical value.  In response to this submission, I note that the term “irreparable harm” must have some meaning.  To be persuaded by the Applicant’s argument would be to curtail the application of the tripartite test established in RJR Macdonald.  This is supported by the Federal Court of Appeal’s jurisprudence.  In El Ouardi v. Canada (Solicitor General), 2005 FCA 42, Justice Rothstein (as he was then known) wrote:

The appellant argues that her appeal will be rendered nugatory if the stay is not granted, resulting in irreparable harm. The difficulty with the argument that an appeal being rendered nugatory amounts to irreparable harm is that if it is adopted as a principle, it would apply to virtually all removal cases in which a stay is sought and would essentially deprive the Court of the discretion to decide questions of irreparable harm on the facts of each case. In some cases, the fact that an appeal is rendered nugatory will amount to irreparable harm. In others, it will not. The material indicates that the appellant's husband may apply to sponsor her return to Canada. While removal will cause hardship, it is not clear that rendering the appeal nugatory will result in irreparable harm.

 

 

[18]           I also note that the medical evidence presented by the Applicant does not demonstrate irreparable harm.  The opinion of Dr. Frederic Bass is communicated to the Court through the affidavit of Ms. Lisa Weich, and is therefore hearsay evidence.  Furthermore, Dr. Bass has not seen the Applicant. 

 

[19]           The Applicant, in his own affidavit, describes some of the effects of stopping smoking and mentions that he is a heavy smoker.  However, the effects described by the Applicant are limited to him stating that the consequences of stopping smoking are unpleasant and hard to assume.  There is no doubt that when a heavy smoker stops feeding his body nicotine, he or she will suffer negative physical reactions.  However, such negative physical reactions have been experienced by millions, if not billions, of people worldwide.  It is undeniable that the negative physical reactions caused by quitting smoking are necessary to achieve the positive results of curbing tobacco and nicotine dependency.  Therefore, I fail to see irreparable harm in the evidence presented by the Applicant.

 

[20]           I reiterate, hardship in itself is not irreparable harm.  Given what I have stated above and the evidence presented by the Applicant there is nothing supporting a finding of irreparable harm, given the high threshold which must be met.  At maximum, the evidence indicates that the prohibition on cigarettes imposed by the CSC has created hardship for the Applicant.  Also I note that there is no evidence indicating that the Applicant, if successful on judicial review, will not be able to obtain a remedy of some kind.   

 

[21]           Also, the evidence informs that the Applicant is visited on a daily basis by a nurse and at no point during these visits did the Applicant ask for smoking cessation medicaments or inform the nurse of any health problems related to him stopping smoking.  The Applicant has an obligation to try to mitigate his damages, something he could have done but has chosen not to do.

 

[22]           It is also significant that the Applicant has been able to roll a couple of cigarettes per day for consumption during the hour he is able to go outside.  Therefore, in my view, the subsequent sentence has already been tailored to take into consideration the needs of the Applicant.

 

IV.       Balance of convenience favours the Respondent

 

[23]           The evidence also does not favour the Applicant insofar as the balance of convenience is concerned.  In his submissions, the Applicant only refers in general terms to:

1)                  the fact that he has experienced “inconvenience” as a result of being deprived of tobacco; and

2)                  there is a general public interest in ensuring that prisoners’ Charter rights are not violated;

 

[24]           With respect to the first point, the “inconvenience” experienced is not such that it exemplifies a great harm and favours the Applicant on a balance of convenience.

 

[25]           With respect to the second point, there is a public interest in ensuring that the provisions of the Charter are respected, but the Applicant’s written representations (at paragraphs 34, 35 of the Memorandum) fail to indicate how Sections 7 and 12 of the Charter are seriously affected (see also Regina Correctional Centre v. Saskatchewan (Dept. of Justice [1995] at paragraphs 9, 11, 10 and 13).

 

[26]           In what concerns, the CSC, it has the obligation pursuant to Section 70 of the CCRA to take all reasonable steps to ensure that the living and working conditions of inmates and the working conditions of staff members are safe and healthy.  Pursuant to this statutory duty, the Commissioner has implemented a policy on second-hand smoke that prohibits smoking indoors.  Likewise, Mission Institution has implemented a policy that prohibits smoking indoors.  Both prohibitions have the express purpose of creating a healthy environment for those who live in, work in, and visit correctional facilities.  Thus, the balance of convenience favours the enforcement of the rules and policies that protect both inmates and staff from second-hand smoke (see RJR MacDonald, above at para. 71).

 

 

 

 

 

 

 

ORDER

 

THIS COURT ORDERS THAT:

 

-                     The Applicant’s Motion for a stay of the 15 day segregation without tobacco is dismissed.

 

“Simon Noël”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET :                                         T-1003-07

 

STYLE OF CAUSE :                         GORDON PAWLIW and ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING :                   Ottawa (Telephone conference)

 

DATE OF HEARING :                     June 7, 2007

 

REASONS FOR ORDER :              The Honourable Mr. Justice Simon Noël

 

DATED :                                            June 8, 2007

 

 

APPEARANCES :

 

Me Donna M. Turko TURKO & COMPANY 100-141 Water Street Vancouver, BC Tel. : (604) 801-6880 Fax.: (604) 801-6883	For the Applicant
Me Liliane Bantourakis, Department of Justice Canada Tel. : (604) 666-4419 Fax. : (604) 666-2639	For the Respondent

 

SOLICITORS OF RECORD :

 

Me Donna M. Turko TURKO & COMPANY 100-141 Water Street Vancouver, BC Tel. : (604) 801-6880 Fax.: (604) 801-6883	For the Applicant
Me Liliane Bantourakis, Department of Justice Canada Tel. : (604) 666-4419 Fax. : (604) 666-2639	For the Respondent