Date: 20080710
Docket: T-211-08
Citation: 2008 FC 862
Vancouver, British Columbia, July
10, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
HAROLD
GALLUP
Applicant
and
ATTORNEY GENERAL OF CANADA and
COMMISSIONER OF CORRECTIONS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is currently an inmate confined to a federal correctional institute.
He requested that he be allowed to have sent in a computer for personal
use. The Applicant’s request was denied, through three levels of grievance,
ultimately by the Senior Deputy Commissioner of Corrections in a decision dated
December 19, 2007. Hence this judicial review. For the reasons that follow, I
find that the application is allowed.
FACTS
[2]
The
Applicant is a federal inmate incarcerated for a lengthy period of time at
Mountain Institute, British Columbia. At the time he entered that Institute in
about August 2002, he did not have a computer in his possession.
[3]
In
January 2007, the Applicant made inquiries of the Warden of that Institution as
to whether he could be provided with a computer purchased by a family member.
The stated purpose for the use of the computer was that about 7000 documents
related to the Applicant’s forthcoming appeal to the Supreme Court of Canada
were recorded on a CD-Rom and that the only practical way that he could access
and use those documents was through a computer specially built for the purpose
by a shop which had been identified by his sister. In his Argument filed with
this Court, the Applicant also states (paragraph 8) that much of the CD-Rom
information is sensitive and useful for a wrongful conviction review by the
British Columbia Innocence Project.
[4]
Apparently,
a person about to be institutionalized for a criminal conviction is permitted,
during the first thirty days upon entry, to have certain personal effects sent
to them. As an alternative form of relief, therefore, the Applicant sought an
extension of that thirty-day period so that a computer may be delivered to him.
[5]
On
March 7, 2007, the Deputy Warden of the Institution advised the Applicant in
writing that his request for an extension of time was denied, drawing the
Applicant’s attention to a moratorium on inmate computers introduced in October
2002. The Applicant’s attention was also drawn to a new protocol that would
allow him to use a common computer provided for the use of all inmates so as to
access his CD-Rom through arrangements made with the relevant Office of the
Institution.
[6]
The
moratorium in question respecting computers was set out in a Directive which stated:
Inmates will no longer be authorized to
purchase or upgrade personal computers, or have computers sent in during the
30-day admission period to incarceration.
…
Only
those inmates with computers, computer peripherals and software as authorized
personal effects prior to October 2002 will be allowed to keep them, in
accordance with all relevant policies and requirements.
[7]
The
purpose of the policy was said to be:
A
risk assessment of inmate personal computers determined that the increased
networking and communicating capabilities of personal computers pose a threat
to the secure operation of the Correctional Service of Canada.
[8]
The
Applicant entered into a first level grievance of that decision. In a written
response to that grievance dated April 27, 2007, the Warden of the Institution
made reference to the policy set out above and denied the first level grievance
at the time. The Applicant made a second level grievance which, in a written
decision made by the Regional Deputy Commissioner dated June 29, 2007, was
denied.
[9]
The
Applicant made a third level grievance. He made it clear that what he wanted
was to purchase or have sent in a computer. He said that the computer would
conform to the “package” that a computer was required to have as set out in
Annex C of Directive CD 566-12 which is related to the configuration that a
computer must have, if it is one that was in a prisoner’s possession before
October 2002, to meet security concerns.
[10]
The
Senior Deputy Commissioner of Correctional Service Canada, as authorized by the
Commissioner, responded by a decision in writing to the Applicant’s third level
grievance dated December 10, 2007. This is the decision under review in these
proceedings. This decision denied the Applicant’s request to have a computer
sent in and denied his request to extend the thirty-day period from entering an
institution to have a computer sent in. The decision did provide that the
Applicant could access his CD-Rom on reasonable notice and subject to security
provisions by means of the common computer provided at the Institution for use
by inmates The Senior Deputy Commissioner said, among other things:
Furthermore, CD 090, Personal Property of
Inmates, and Policy Bulletin #162 have direct relation to your issue. Bulleting
#162 outlines changes to have been made to CD 090 due to the increased
networking and communicating capabilities of personal computers. Personal
computers pose a threat to the secure operations of the Correctional Service of
Canada (CSC) and it is felt that the risk to both the public and CSC outweigh
the benefits of in-cell inmate computers. The Bulletin states that inmates will
no longer be authorized to purchase and upgrade personal computers, or have
computers sent in during the 30-day admission period to incarceration. Only
those inmates who had computers, computer peripherals and software as
authorized personal effects prior to October 2002 will be allowed to keep them.
Therefore, policy clearly stipulates that inmates cannot purchase or have a
computer brought in to the institution.
With regard to your request for an
extension to the 30-day window, you cannot request an extension because the
window began when you were first incarcerated on 2002/06/19. If you had wanted
to extend your 30-day effect window, you would have had to request an extension
at the time.
ISSUES
[11]
The
Applicant has raised essentially two issues:
1.
Does
the decision conform to the provisions of section 4(e) of the Corrections
and Conditional Release Act,
2.
Does
the decision violate the Applicant’s rights under section 15(1) of the Charter
of Rights and Freedoms?
PRELIMINARY ISSUE
[12]
The
Applicant filed his own affidavit as part of his record in this application.
The Respondent objected to having that affidavit admitted into evidence on
this application on the basis that it went beyond merely providing what was
before the decision-maker at the time that the decision under review was
made. In particular, the Respondent’s counsel took objection to paragraphs 15
and 22 of the Applicant’s affidavit. Paragraph 15 is directed to discussions
that other inmates of the Institution had with an official of the Institution
as to the meaning of the relevant directive. Paragraph 22 is directed to a
different grievance respecting a different inmate at another institution. After
discussion with the Court and the parties during the hearing of the matter held
by teleconference, it was agreed that paragraphs 15 and 22 would not be
considered to be in evidence on this application and thus, they have not been
considered in arriving at the decision in this proceeding.
Issue #1: Conformity
with Section 4(e) of the Corrections and Conditional Release Act
[13]
The
Correctional and Conditional Release Act, S.C. 1992, c. 20, sets out its
purpose in section 3:
3. The
purpose of the federal correctional system is to contribute to the maintenance
of a just, peaceful and safe society by
(a)
carrying out sentences imposed by courts through the safe and humane custody
and supervision of offenders; and
(b) assisting the
rehabilitation of offenders and their reintegration into the community as
law-abiding citizens through the provision of programs in penitentiaries and in
the community.
[14]
Section
4(a) stipulates that the protection of society shall be the paramount consideration
in the correction process:
4. The
principles that shall guide the Service in achieving the purpose referred to in
section 3 are
(a) that the
protection of society be the paramount consideration in the corrections
process;
[15]
Section
4(e) provides that offenders retain all the rights and privileges of members of
society except those as are necessarily removed or restricted as a consequence
of the sentence:
(e)
that offenders retain the rights and privileges of all members of society,
except those rights and privileges that are necessarily removed or restricted
as a consequence of the sentence;
[16]
The
Commissioner issued a Directive respecting computers, the relevant parts of
which have already been recited in these reasons. A further Directive,
replacing earlier ones such as 090, number 566-12, was issued, dated 2007-01-05,
stating as its objectives in section 1 and 2:
1. To allow inmates to have
sufficient personal property to ensure requirements of daily life are met while
ensuring the safety of staff, inmates and the public by establishing
appropriate controls for the management of inmate personal property and
purchasing practices.
2.
To provide
reasonable protection from damage, theft or loss of personal property of
inmates or offenders at Community-Based Residential Facilities (CBRF).
[17]
Section
21 of Directive 566-12 provides a listing of categories of personal property
items that inmates shall normally be allowed to retain in their cells. Among
the categories of listed items are:
21. Inmates shall normally be
allowed to retain personal property items in their cells which fall within the
following categories, in accordance with the National Lists of Personal
Property:
…
c. articles for personal use
such as notebooks, and writing materials;
…
g. calculators, typewriters,
batteries and battery chargers;
h. television and radio sets,
compact disc players and discs record players and records, tape players and
tapes;
i. electronic games (in
accordance with the Technical Requirements of Inmate-Owned Computers and Electronic
Games);
j. books and magazines (in
accordance with CD 764 – Access to Material and Live Entertainment and CD – 345
Fire Safety);
…
l. a maximum of twenty (20) computer floppy diskettes (1.4
MB 0 3.5 in/90mm) for inmates accessing institutional supplied computers. All
floppy diskettes must enter the institution through purchase orders effective
the date of implementation of this policy.
[18]
Section
24 provides for computers authorized as personal effects prior to October 2002:
24.
Inmates who have approved personal computers, peripherals and software which
were authorized as personal effects prior to October 2002, shall be
permitted to retain this equipment, with the exception of the prohibited
computer peripherals and electronic games, until the time of their release from
institution or violation of the conditions specified in the Technical
Requirements for Inmate-Owned Computers and Electronic Games) or form CSC/SCC
2022. These inmates were required to sign form CSC/SCC 2022.
[19]
The
question as to whether the adoption of a policy such as the foregoing conforms
with the provisions of the Corrections and Conditional Release Ac, supra,
has previously been considered by this Court in Poulin v. Canada (Attorney
General),
2005 FC 1293. Justice Martineau at paragraph 26 of that decision said:
26 In
order to dispose of the application for judicial review at bar, therefore, only
the following additional comments are needed. First, the adoption of a coherent
and predictable policy on staff safety, and even on the safety of the prison
population, is of cardinal importance in the penitentiary system. Directive
090, dealing with the possession of computers with certain peripheral equipment
in cells, is thus very important. Any means of communication between inmates,
or even between inmates and persons from outside the penitentiary, is clearly
unacceptable. That is why the bringing in of new computers and peripheral
equipment must be scrupulously controlled by the Service. The Commissioner's
general concerns are thus legitimate, in view of the breathtaking speed at
which the data processing field is evolving. The basis for the current
limitations is not known to the Court, but I imagine it has to do with a data
processing concern such as the power of computers after that date. I can only
speculate as to the specific reasons the Commissioner may have had in
prohibiting the purchase of new computers after October 2002 and limiting
the use of peripheral equipment previously authorized. The respondents chose
not to file any affidavit from the persons responsible for adopting and
implementing Directive 090. At the same time, Directive 090 also recognizes
that certain individuals suffering from visual or physical handicaps need in
certain circumstances to use peripheral equipment and software developed for
their requirements. That is the applicant's situation. Thus, I do not have to
decide here whether the loss of the disputed peripheral equipment in the case
at bar is an infringement of the equality right claimed by the applicant on
account of his visual disability. In any case, the current policy authorizes
the possession of non-compliant computers and peripheral equipment in the case
of inmates who obtained leave before October 2002 to keep them. That is the
applicant's situation. The Commissioner undoubtedly may choose in future to
cancel any acquired right of the applicant and other inmates, by again amending
Directive 090, but I do not have to decide at this time whether such a decision
would be legal. Suffice it to say that Directive 090 currently recognizes
the applicant's acquired rights.
[20]
It
is clear from the statement made respecting the policy as adopted in 2003 and
the reasoning of Justice Martineau that the objection with respect to inmates
having personal possession of computers is that the ability to network and
communicate with others by use of the computer gives rise to legitimate
concerns. Thus, to the extent that section 21 or any other provision of
Directive 566-12 does not specifically authorize post-October 2002 computers to
be personally possessed by inmates it cannot be faulted.
[21]
However,
there is a concern in the present circumstances that all parties have been
proceeding on a mutually shared misunderstanding. The Applicant asked for a
computer and undertook to have such a computer conform to acceptable
pre-October 2002 standards. The Respondent says that since the Applicant
never previously had a computer he cannot have one now, whether built to
pre-October 2002 standards or otherwise. The problem seems to be in the use of
the word “computer”.
[22]
The
Applicant finds himself in this situation. He has been convicted of murder and
wishes to pursue his legal recourses including an appeal to the Supreme
Court of Canada. Apparently there are some seven thousand pages of documents
that may be relevant to such an appeal which the Applicant is undertaking
himself. Those documents have been copied by others to a CD-Rom and this is the
only form to which the Applicant has access. To print them out would be
prohibitively expensive. The Applicant needs a convenient means to read those
documents. The Respondent has offered the Applicant access to a computer
located in the Institute. The Applicant says that access would be extremely
limited and subject to severe restrictions. If the seven thousand pages were
printed out and several thousand dollars paid for that purpose, the Applicant,
subject to fire and safety restrictions, could have them in his cell and refer
to them at a time of his choosing.
[23]
The
Applicant can, according to section 21 of Directive 566-12, have electronic
devices such as a calculator, typewriter, television, radio and electronic
games in his cell. What the Applicant wants is a device so that he can read
what is on his CD Rom, that is, some type of CD reader. It is unfortunate that
all parties have referred such a device as a computer.
[24]
While
the parties should not be faulted for using the word “computer” in their
discussions, at some point consideration should have been given to what the
real needs of the Applicant were namely, to read the CD-Rom at a time of his
choosing, and to the concerns of the Respondent namely, that inmates should not
have at their disposal means for networking and communicating with others
without adequate supervision and control. What the Applicant wants is not a
computer but a CD-Rom reader with a screen and control panel. Any concerns as
to whether the Applicant would share or use material other than the CD-Rom in
question are no greater than those with respect to electronic games that are
allowed and could easily be met by appropriate supervision.
[25]
This
is a situation where the parties should reconsider the whole matter given a
proper perspective. The decision at the third level grievance will be set aside
and the matter returned for reconsideration in light of these reasons.
ISSUE #2 – Charter
Considerations
[26]
In
view of the foregoing it is not necessary to consider the Charter issue. I
point out, however, that such issue was recently considered by Justice Gauthier
of this Court in Poulin v. Canada (Attorney General) 2008 FC 811
at paragraphs 45 and following. I come to the same conclusion in the
circumstances of the present case; the Applicant’s rights under section 15(1)
of the Charter have not been violated.
CONCLUSION
[27]
As
a result therefore, I will set aside the decision at issue and require
reconsideration in light of these reasons. There will be no Order as to costs.
JUDGMENT
For the reasons
herein:
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
decision of the Senior Deputy Commissioner of Corrections dated December 19,
2007 is set aside;
2.
The
matter is referred back for reconsideration having regard to these reasons;
3.
No
Order as to costs.
“Roger
T. Hughes”
Email this Content