Date: 20080104
Docket: T-2241-07
Citation: 2008
FC 10
Ottawa, Ontario, January 4, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ISAAC
DRENNAN
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Issac Drennan
seeks a mandatory interlocutory injunction to compel the Correctional Service
of Canada to transfer him to the Regional Treatment Center at the Pacific Institution,
where, he says, his disability can be properly accommodated. Mr. Drennan asks
that the injunction be granted pending the resolution of the complaint that he
has recently filed with the Canadian Human Rights Commission.
[2]
For the
reasons that follow, I am satisfied that Mr. Drennan is entitled to limited
injunctive relief, but that this relief does not involve a transfer to a
different facility within CSC.
Background
[3]
Mr.
Drennan is currently completing a prison sentence, having been convicted of
several serious offences. His statutory release date is January 22, 2008.
[4]
As a
result of gunshot injuries suffered at the time of his arrest, Mr. Drennan was
rendered a paraplegic, and is confined to a wheelchair.
[5]
Mr.
Drennan has spent a large portion of his sentence in Matsqui Institution, a
medium security institution in the lower mainland of British Columbia. He does not take issue with the level
of accommodation that was provided to him at that institution.
[5]
[6]
Mr.
Drennan had previously been classified as a medium security prisoner. However,
as a result of behavioural issues, in November of 2007 he was reclassified as a
maximum security prisoner. The decision was also made at this time to transfer
Mr. Drennan to Kent Institution, which is a maximum security institution.
[7]
Prior to
his transfer, concerns were raised by Mr. Drennan’s counsel as to whether his
physical needs could properly be accommodated at Kent Institution. CSC was of
the view that sufficient accommodation was available, and Mr. Drennan was moved
to Kent Institution on December 18, 2008.
[8]
While at
Kent Institution, Mr. Drennan has been provided with the assistance of an
inmate caregiver, who is responsible for collecting his meals and providing him
with whatever other assistance he might require. While there was initially
some question as to the payment of the inmate caregiver for this service, he is
now being paid by CSC to assist Mr. Drennan on a full-time basis.
[9]
On his
arrival at Kent Institution, Mr. Drennan was initially placed in a cell that
was not wheelchair accessible. Moreover, the shower to which he had access was
not accessible to those in wheelchairs. Two days later, however, he was moved
to a cell which had been modified so as to accommodate wheelchairs. He was
also provided with access to a shower that has “grab bars” installed on the
walls.
[10]
Mr.
Drennan’s current cell is in a range which is only accessible by stairs. There
have been discussions between the parties with respect to providing Mr. Drennan
with access to a chair lift. While there is a disagreement between the parties
as to precisely what has transpired in this regard, it is common ground that no
such lift is permanently in place, and that if Mr. Drennan wants to access the
lift, it would have to be installed in the stairwell each time that he wanted
to go up or down the stairs.
[11]
Mr.
Drennan claims that each time he has asked to use the lift, he has been
refused. Moreover, he says the videotape that he and his caregiver were shown
regarding the use of the lift made it clear that the lift would not work with
the model of wheelchair that he uses. As a consequence, he is forced to drag
himself up and down the stairs on his buttocks, which he says is not only
humiliating, but also has caused him to develop pressure sores on his buttocks.
[12]
CSC says
that the lift is available for Mr. Drennan’s use at any time that he is
permitted to move off of the range. CSC further says that a second wheelchair
has been provided for Mr. Drennan for him to use when using the chair lift.
[13]
Mr.
Drennan also says that the shower to which he has access does not address his
needs. The uncontradicted evidence in this regard is that there is no shower
curtain separating the shower area from the area where he has to leave his
wheelchair, with the result that his wheelchair gets wet when he showers. Having
to sit on the wet surface after he leaves the shower contributes to the
breakdown of the skin on his buttocks, making his pressure sores worse.
[14]
There is
also no dispute about the fact that the shower area does not have a bench or
chair for Mr. Drennan to sit on while showering. As a result, he has to bring
in a plastic chair from his cell. The chair is not designed for use in a
shower, is not sturdy, and does not have slip-resistant legs. This has caused
Mr. Drennan to fall in the shower while attempting to move from the plastic
chair to his wheelchair, causing him injury.
[15]
The
plastic chair also does not have drainage slots, causing Mr. Drennan to sit in
a pool of water while showering and drying himself, further exacerbating his
pressure sores.
[16]
Because of
his dissatisfaction with the accommodation provided to him by CSC, Mr. Drennan
filed a second level grievance at CSC with respect to these matters. On
December 19, 2007, he also filed a complaint with the Canadian Human Rights
Commission.
[17]
As was
noted previously, Mr. Drennan’s statutory release date is January 22, 2008. As
a consequence, there is no realistic possibility that his human rights issues
will be addressed through the processes established under the Canadian Human
Rights Act before then.
[18]
Mr.
Drennan asserts that the conditions under which he is currently being held at
Kent Institution put his personal health and safety in jeopardy. As a result,
he now seeks a mandatory injunction compelling the Correctional Service of
Canada to transfer him to the Regional
Treatment Center at the Pacific Institution,
where he says that his disability can be properly accommodated.
Jurisdiction
[19]
CSC does
not squarely challenge the jurisdiction of this Court to grant an injunction in
a case such as this, but, at the same time, counsel questions whether such
jurisdiction exists. In this regard, counsel points out that there has yet to
be a case where interim injunctive relief has been granted by this Court in
relation to a human rights complaint that had not yet been referred to the
Canadian Human Rights Tribunal for determination by the Canadian Human Rights
Commission.
[20]
According
to CSC, if the Court was to assume jurisdiction, it would usurp the
Commission’s screening function, and would effectively result in the determination
of the merits of Mr. Drennan’s human rights complaint. No authority was cited
by the CSC for this proposition.
[21]
This
matter was brought on an urgent basis, and neither party was in a position to
make fulsome submissions on the jurisdictional issue. Moreover, for this
process to have any meaning for Mr. Drennan, a quick decision on the part of
the Court was required. As a consequence, I intend to deal with the
jurisdictional issue summarily, and this aspect of these reasons should be read
with this in mind.
[22]
In Canada
(Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, the
Supreme Court of Canada found that this Court has the jurisdiction to grant
“free standing” interim injunctive relief in relation to complaints made under
the Canadian Human Rights Act.
[23]
A review
of the Supreme Court’s analysis at paragraphs 23-37 of that decision does not
disclose any obvious impediment to this Court assuming jurisdiction in this
case. Virtually all of the Supreme Court’s comments with respect to the
supervisory relationship of the Federal Court to the Canadian Human Rights
Tribunal apply with equal force to the nature of the relationship between the
Federal Court and the Canadian Human Rights Commission.
[24]
Moreover,
I do not accept CSC’s submission that the assumption of jurisdiction by the
Court would usurp the screening function of the Commission, or that it would
effectively result in the determination of the merits of Mr. Drennan’s
complaint. All that the Court is being called upon to decide is whether Mr.
Drennan has satisfied the tripartite injunctive test. This requires, amongst
other things, the determination of whether he has raised a serious issue, not
whether his human rights complaint should ultimately succeed.
[25]
As a
consequence, to the extent that CSC is in fact raising a jurisdictional
objection, that objection is dismissed.
[26]
In order
to be entitled to injunctive relief, Mr. Drennan must demonstrate that there is
a serious issue to be tried, that he will suffer irreparable harm if the
injunction is not granted, and that the balance of convenience favours the
granting of an injunction: see RJR-MacDonald Inc. v. Canada (Attorney
General), [1994] 1 S.C.R. 311.
Serious Issue
[27]
Generally
speaking, the threshold for establishing the existence of a serious issue is a
low one, and a moving party must simply demonstrate that the application is
neither vexatious nor frivolous, and a prolonged examination of the merits is
generally neither necessary nor is it desirable: see RJR-MacDonald at
pp. 337-338.
[28]
However,
in this case, CSC submits that the Court should take a hard look at the merits
of Mr. Drennan’s human rights complaint. Given that Mr. Drennan will shortly
be released from custody, CSC says that the practical result of any relief
granted by the Court would be to effectively determine the merits of his
complaint.
[29]
I am not
persuaded that the granting of the relief sought by Mr. Drennan will finally
determine all of the issues in his human rights complaint, as there are clearly
issues relating to systemic and remedial matters that would be left
unresolved. That said, nothing turns on this conclusion, as I am satisfied
that a close examination of the merits of the matter demonstrates the existence
of a serious issue as to whether CSC has satisfied the duty imposed on it by
the Canadian Human Rights Act to accommodate Mr. Drennan’s disability to
the point of undue hardship.
[30]
In this
regard, I would simply note that whatever dispute there may be in the evidence
with respect to the availability of access to the chair lift, it is
uncontroverted that Mr. Drennan has advised CSC of the accommodative measures
that he needs in order to be able to use the shower safely. There is no
suggestion that Mr. Drennan’s demands in this regard are not legitimate. Nor
is there any question about the fact that CSC has not provided Mr. Drennan with
either a proper shower chair or shower curtain. Finally, no explanation has been
provided by CSC as to why these simple accommodative measures have not been implemented,
nor has there been any attempt to justify its failure to do so.
[31]
As a
consequence, Mr. Drennan has satisfied the serious issue component of the
injunctive test.
Irreparable Harm
[32]
It is
clear from the jurisprudence that proof of irreparable harm must be clear and
not speculative. It is also well understood that irreparable harm refers to the
nature of the harm suffered rather than its magnitude.
[33]
With this
in mind, while Mr. Drennan has satisfied me that he will suffer irreparable
harm if certain accommodative measures are not implemented on an interim basis,
he has not persuaded me that he will suffer irreparable harm is he is not
transferred to the Regional Treatment Center at the Pacific Institution.
[34]
Insofar as
access to the chair lift is concerned, there is a serious conflict in the
evidence as to what has gone on in this regard. Even if I accept Mr. Drennan’s
version of events, it appears that Mr. Drennan’s meals can be brought to him by
his inmate caregiver, who is being paid by CSC to provide such services. While
Mr. Drennan quite understandably does not like having to depend on others for
assistance, his need to do so for the next three weeks does not, in my view
amount to irreparable harm.
[35]
Mr.
Drennan evidently needs to use the stairs at Kent Institution if he wants to
visit the library or the exercise yard, or to go outside for smoke breaks. Mr.
Drennan would also need to go down the stairs if it became necessary to attend
the health centre.
[36]
Once
again, it must be kept in mind that what we are dealing with here is a
three-week period between now and Mr. Drennan’s release from prison on January
22, 2008. Any inability on his part to go to the library, the exercise yard, or
to go outside to smoke during this period does not in my view amount to
irreparable harm such as to entitle him to interim injunctive relief.
[37]
At this
point, it also is speculative to think that Mr. Drennan may need health care
during this time. In any event, no reason has been offered as to why medical
personnel could not visit him in his cell, if need be.
[38]
In her
reply submissions, counsel for Mr. Drennan raised, for the first time, the
question of Mr. Drennan’s safety in the case of a fire in the institution.
Given that CSC did not know that this was an issue, it had no opportunity to
marshal any evidence in this regard. As a result, I advised counsel that I
would not be considering this submission, and I decline to do so.
[39]
This
leaves the issue of Mr. Drennan’s lack of access to proper shower facilities.
Mr. Drennan has satisfied me that he cannot safely use the shower facilities as
they are currently set up, as is evidenced by the fact that he has already
suffered one serious fall in the shower.
[40]
In this
regard, it must be recalled that irreparable harm refers to the nature of the
harm suffered rather than its magnitude. With this in mind, while Mr. Drennan
might not suffer any long-term physical effects if he were unable to shower for
the next three weeks, I am satisfied that the injury to his personal dignity
that would result from his inability to safely attend to his most basic
personal hygiene needs for the next three weeks amounts to irreparable harm.
Balance of Convenience
[41]
CSC
submits that Mr. Drennan does not come to this Court with clean hands, as his
transfer to Kent Institution came about as a result of his own misconduct. Be
that as it may, this does not in any way relieve CSC from its obligation to
respect Mr. Drennan’s quasi-constitutional human rights, and to provide him
with safe living arrangements that properly accommodate his disability. This
duty is all the more important in the case of a prisoner, who has no choice as
to his living arrangements, and as such is in a uniquely vulnerable position.
[42]
Moreover,
as was noted earlier, CSC has offered absolutely no explanation as to why Mr.
Drennan cannot be provided with a medically-approved shower chair or shower
curtain. Indeed, CSC has stated that it has no objection to doing so, if so
ordered by the Court. As a result, the balance of convenience clearly favours
Mr. Drennan in this regard.
Conclusion
[43]
For these
reasons, the motion is granted, in part.
ORDER
THIS COURT ORDERS that within 48 hours of
this decision, CSC will install a shower curtain in the wheelchair accessible
shower stall in “A” Block at Kent Institution, and will provide a
medically-approved shower chair to Mr. Drennan for his use while he is in the
institution.
“Anne
Mactavish”
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