Date: 20110602
Docket: A-338-10
Citation: 2011 FCA 184
CORAM: NADON
J.A.
LAYDEN-STEVENSON J.A.
MAINVILLE
J.A.
BETWEEN:
WARREN MCDOUGALL
Appellant
and
CANADA (ATTORNEY GENERAL)
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This
concerns an appeal from the judgment of Tremblay-Lamer J. (the “applications
judge”) cited as 2010 FC 747 dismissing the appellant’s application pursuant to
section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, for
judicial review of the decision of the Senior Deputy Commissioner of the
Correctional Service of Canada (“CSC”) which denied the appellant’s inmate
grievance concerning both (a) the validity of the Institutional Standing Order
770 (“ISO 770”) issued by the Warden of the Ferndale Institution and (b) the
cancellation of the visiting clearance of two of the appellant’s visitors.
[2]
For the
reasons set out below, I would dismiss this appeal.
Background
[3]
The use of
illicit drugs in federal penitentiaries is a pressing problem for Canada’s correctional authorities. The
Correctional Service of Canada Review Panel (the “Review Panel”) submitted to
the Minister of Public Safety a Report dated October 2007 (the “Report”) in which
it provided an independent assessment of CSC’s contributions to public safety
and proposals (or suggestions as to) how the current federal correctional
system can be improved. This Report raises serious concerns related to illicit
drug use in federal penitentiaries by an offender population which it assessed
as being more violent and disrespectful than in the past and less concerned
about repercussions while incarcerated. The Report notably includes the
following at pages 26-27:
While many factors may be contributing to
this climate of disrespect, the Panel believes the key underlying factor is
illicit drug use and trafficking. The prevalence of drug abuse and trafficking
should not be surprising given that four out of five offenders arrive at a
penitentiary with serious substance abuse problems, and about half the
offenders have committed crimes under the influence of drugs, alcohol or other
intoxicants. The current offender population will try to find every
vulnerability in CSC’s security systems to introduce drugs into the
penitentiary.
According to a member of the Citizens’
Advisory Committee at the Victoria, B.C., parole office:
When I have inmates tell me they can get
just about any drug in an institution that they can get on the street and I
hear from CSC institutional staff about drug-related violence, I have to wonder
whether enough is being done to keep these drugs out of institutions.
The Panel is convinced that drugs have
also propagated the increase in organized gangs within penitentiaries and the
ensuing violence as these gangs attempt to continue their criminal activity…
…
The Panel members believe that illicit
drugs are unacceptable in a federal penitentiary and create a dangerous
environment for staff and offenders that translates into assaults on offenders
and staff, promotes transmittable diseases such as HIV/AIDS and Hepatitis, and
destroys any hope of providing a safe and secure environment where offenders
can focus on rehabilitation.
As dismal as the situation seems, the
Panel believes there are solutions requiring a sustained focus.
[4]
The Review
Panel heard from many interest groups that visitors are considered one of the
major sources of drugs in penitentiaries (Report at p. 31) and thus made recommendations
to enhance the control and supervision of visitors, including the creation of a
national database of all visitors (Report at p. 62).
[5]
This
Report and its recommendations were acted upon by CSC which began working on a
number of initiatives to enhance safety and security, including plans that were
specifically linked to eliminating drugs. Among the measures undertaken was the
creation of the recommended national database for visitors to federal
institutions which allowed for visitors to one institution to be cross-checked
against other institutions to determine which individuals are visiting multiple
inmates.
[6]
Within the
context of this national databank, and under the authority of section 4 of
Commissioner’s Directive CD-770 concerning inmate visits, the Acting Director
General, Security Branch, of the CSC issued Security Bulletin Number 2008-06
(the “Security Bulletin”) on June 30, 2008 in order to clarify procedures for
staff members involved in the clearance of visitors. The Security Bulletin
requires that the screening of any new visitor include a verification of any
other offender the visitor may be visiting and that any visitor without
adequate justification for such visits be refused clearance.
[7]
Following
the Security Bulletin, the Warden of the Ferndale Institution issued the
impugned ISO 770 in August 2008 as a visitor screening tool. The provisions of
ISO 770 pertinent to this appeal are sections 5 to 7 which read in part as
follows:
5. The Visits Board shall consist of the
Manager Operations (chairperson), Correctional Manager, Security Intelligence
Officers, V&C [visits and correspondence] staff and other ad hoc members.
6. The Visits Board shall review
applications of all persons who wish to enter the institution to visit inmates.
7. A security screening for any new
visitors shall include a verification of any other inmate the visitor may be
visiting. The following procedures will be used to determine if any new
applicants are on another inmate’s visiting list:
a) when an application is received by
V&C, the officer shall check to ensure that the application is completed
and correctly filled out … as per current routine;
…
d) if the visitor is listed as being on
another inmate’s visiting list, they will be sent a letter requesting to know
why they are applying to visit this particular inmate at Ferndale Institution;
e) the explanation received by V&C
will be discussed at a Visits Board, prior to a CPIC check;
f) if the explanation is viable, the
process will continue with entering the information into OMS, CPIC check, etc.;
g) if the explanation is not viable, the
visitor will be notified via letter. This information shall also be logged into
OMS as it will show as “DENIED” under the inmates contacts. This will be useful
to determine if individuals are attempting to visit inmates at other
Institutions repeatedly. The inmate shall also receive notice that the visitor
was denied;
h) if someone was previously listed on an
other inmate’s visiting list (showing as “CANCELLED”) in RADAR, the application
shall be processed as usual, because the visitor is no longer active on the
other inmate’s visiting list.
[8]
When the
Ferndale Institution conducted a search of visitors visiting more than one
inmate in the Pacific Regional institutions, two of the appellant’s visitors
were identified. The two visitors were sent letters on August 27, 2008 requesting
that they provide a written explanation indicating who they were visiting at
which institutions and if they wished to continue visiting those inmates. The
letters indicated that their visiting clearances would be cancelled if no
response was received within four weeks, but that visitor status could be
reinstated by resubmitting a new visiting application.
[9]
The two
concerned visitors refused or failed to respond to these letters. Consequently,
both visitors were sent letters dated October 2, 2008 notifying them that their
visiting clearance had been cancelled, but they could contact the Visits and
Correspondence Department if they had any questions. Neither took this offer.
Moreover, there is no indication that either of these visitors submitted a subsequent
new application to visit the appellant.
[10]
The appellant
was informed of these visiting clearance cancellations on December 23, 2008 and
immediately complained. He was then afforded an opportunity to meet with the
Visits Board to discuss the matter. He eventually submitted an inmate grievance
challenging the legality of ISO 770 and the decision to cancel the clearance.
The thrust of the appellant’s argument throughout the grievance process was set
out as follows in his first level grievance (Appeal Record at p. 1152):
The VRB [Visitor Review Board] claimed
that several visitors had responded to the letters and, when the reasons for
visiting they provided were discussed during VRB, the VRB had deemed the
reasons satisfactory to maintain visitors’ clearance. I pointed out that this
process was illegal, as the law makes no requirement for visitors to justify
the nature or quality of their relationship with an inmate nor to justify their
reasons for visiting. Rather, the onus is on the institutional head to
establish, on reasonable grounds, that there is a risk to safety or the
security of the institution before any authority is given under law to
restrict, suspend, or refuse any visit. Moreover, there is an obligation to
inform the inmate and the visitor that there is a concern and also to give them
an opportunity to make representations. I was never informed that this review
was being conducted. I was never formally notified of the decision or the
reasons therefore. Nor was the Inmate Committee consulted on this policy
change.
…
I’m asking that the ISO 770 be rescinded
for failing to conform with the law concerning visiting rights.
I’m asking that my visitors’ approved
status be reinstated…
[11]
At the
third-level of the process, the grievance was denied by the Senior Deputy
Commissioner on the following grounds (Appeal Record at p. 1144):
Based on information that suggests that
visitors who visit more than one (1) offender may present a risk to the
Institution, it is not unreasonable that visitors be required to provide an
adequate justification as to why they wish to visit a particular offender.
With regard to your contention that the
policy regarding visitors who visit more than one (1) offender only applies to
new visitors, the Reintegration Programs Division at National Headquarters was
consulted and it has been found that the policy applies to all visitors. The
Security Bulletin was developed as a result of the Correctional Service of
Canada (CSC) Review Panel Recommendation regarding the creation of a national
database for visitors to Federal institutions. The intent of policy is to
mitigate the potential for security risks associated with visitors who desire
visiting privileges with more than one (1) inmate. For this reason, the policy
does not simply apply to new visitors but applies to all visitors attending CSC
institutions.
With regard to the specific case of your
visitors, personal information regarding individuals held by the CSC is
protected under the Privacy Act. While CSC cannot provide any more
information regarding the visiting status of your visitors, your visitors can
communicate with the Institution to discuss the concerns that have arisen.
As security is the paramount
consideration in all decisions made in CSC institutions and there is no
indication that any law or policy is being violated by requesting visitors who
visit more than one (1) inmate to provide an explanation as to why they wish to
visit an offender, this part of your grievance is denied.
The
Reasons of the applications judge
[12]
The
applications judge found that ISO 770 was lawfully enacted and was consistent
with paragraph 71(1) of the Corrections and Conditional Release Act,
S.C. 1992, c. 20 (the “Act”) which provides that inmates are entitled to have
reasonable outside contacts, including visits, “subject to such reasonable
limits as are prescribed for protecting the security of the penitentiary or the
safety of persons”. The applications judge found that ISO 770 was such a
reasonable limit.
[13]
Turning
her attention to the specific case of the appellant’s two visitors whose
clearance had been cancelled, the applications judge found that though such a
cancellation must be assessed on a case by case basis in accordance with the
duty to act fairly, ISO 770 was consistent with this rule since it did not
authorise a blanket restriction on visits, but rather provided visitors whose
clearance was in doubt an opportunity to make representations explaining the
reasons for their visits and setting up a process for assessing these reasons.
[14]
The
applications judge also rejected the appellant’s argument that ISO 770 had been
adopted in violation of the inmates’ right to be consulted since, under section
74 of the Act, inmates have no entitlement to consultation on decisions
relating to security matters.
[15]
The
applications judge rejected the appellant’s arguments that ISO 770 was
ineffective on the basis that it was not up to the courts to determine the
wisdom of delegated legislation or to assess its validity on the basis of the
court’s policy preferences.
[16]
Finally, the
applications judge found the cancellation of the clearance of two of the
appellant’s visitors reasonable since the concerned visitors had failed to
respond to the questions asked of them under ISO 770.
The positions of the parties
[17]
The
appellant submitted a series of grounds for appeal which challenged just about
every aspect of the reasons given by the applications judge. However, in his notice
of appeal and in his oral arguments before this Court the appellant emphasized issues
which he had raised in his grievance and which were not directly dealt with by
the applications judge in her reasons.
[18]
The
appellant notably referred to subsection 91(1) of the Corrections and
Conditional Release Regulations, SOR/92-620 (the “Regulations”) which provides
that a visit to an inmate cannot be refused except (a) if a staff member
believes on reasonable grounds that the visit would jeopardize the security of
the penitentiary or the safety of an individual or involve the commission of a
criminal offence, and (b) that restrictions on the manner in which the visit
takes place would not be adequate to control the risk. The appellant asserts
that these provisions are incompatible with ISO 770 and the resulting
cancellation of the visiting clearance.
[19]
The appellant
also emphasizes that he had not been afforded an appropriate opportunity to
make representations concerning the cancellation of the visiting clearance and
that this also constituted a violation of his right to procedural fairness.
[20]
The
respondent, for its part, essentially supports the applications judge’s reasons
in every respect.
The issues in appeal
[21]
I would
identify the issues in this appeal as follows:
a. Did the applications judge err
in finding that the Warden of the Ferndale Institution had the authority to
adopt ISO 770?
b. Insofar as ISO 770 was validly
adopted, was the cancellation of the visiting clearance made in contravention of
subsection 91(1) of the Regulations in that (i) no reasonable grounds existed
for such a cancellation, or (ii) less restrictive measures could have been
implemented in order to control the risks of illicit drug trafficking during
these visitors’ visits?
c. Did the CSC violate the
appellant’s rights by not providing him with an opportunity to make
representations concerning the cancellation of the visiting clearance?
Standard of Review
[22]
On appeal of a judgment concerning a judicial review application,
the role of this Court is to determine whether the applications judge
identified and applied the correct standard of review, and in the event she has
not, to assess the impugned decision in light of the correct standard of
review; the applications judge’s selection of the appropriate standard of
review is a question of law subject to review on appeal on the standard of
correctness: Dr. Q. v. College of Physicians and Surgeons
of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph 43; Mugesera v. Canada (Minister of Citizenship and Immigration),
2005 SCC 40, [2005] 2 S.C.R. 100 at paragraph 35; Prairie
Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006
FCA 31, [2006] 3 F.C.R. 610 at paragraphs 13-14; Yu v. Canada (Attorney
General), 2011 FCA 42 at paragraph 19.
[23]
In
her reasons, the applications judge did not discuss nor assess the applicable
standard of review, but it appears from her reasons that she applied a standard
of correctness in determining whether ISO 770 was lawful and whether it was
adopted in violation of a duty of fairness, while she applied a standard of
reasonableness to the third-level grievance decision upholding the cancellation
of the clearance of the appellant’s two visitors.
[24]
In
assessing the standard of review of inmate grievance decisions, a standard of correctness
applies to issues of law, including the interpretation of the Act and
Regulations and of the Commissioner’s Directives, as well as to issues of
procedural fairness. A standard of reasonableness applies to issues of fact and
to issues of mixed law and fact, unless an extricable issue of law can be
identified, in which case a standard of correctness may apply to that extricable
issue: Sweet v. Canada (Attorney General), 2005 FCA 51, 332 N.R. 87 at
paragraphs 15-16; Yu v. Canada (Attorney General), above at paragraph 21.
[25]
The
first issue in this appeal raises the question of the legal authority of the
Warden to adopt ISO 770, which is a question of law. The second issue raises
the question of the compatibility of the decision to cancel the visiting clearance
with subsection 91(1) of the Regulations, which itself raises questions of
mixed law and fact, notably whether reasonable grounds existed for this
cancellation and whether less
restrictive measures could have been implemented. Finally, the third
issue in this appeal raises a question of procedural fairness.
[26]
Consequently,
a standard of correctness applies to the first and third issues, while a
standard of reasonableness applies to the second issue unless an extricable
issue of law can be identified.
Did
the applications judge err in finding that the Warden of the Ferndale Institution had the authority
to adopt ISO 770?
[27]
As noted
above, ISO 770 provides that the security screening of visitors must include a
verification of any other inmate the visitor may be visiting and, if multiple
inmate visits are found to exist, the concerned visitor is required to explain
the reasons why multiple inmate visits are being pursued. This explanation is
then reviewed at the institution’s Visits Board to determine if it is viable.
In the event that the explanation is not found to be viable, the visitor’s
clearance is denied with notice of this decision being provided to both the
concerned visitor and the inmate.
[28]
The first
issue is whether ISO 770 can be adopted and implemented by the Warden of the
Ferndale Institution under existing statutory or regulatory authority. The applications
judge found that it could be so adopted. Though I agree with the applications
judge’s conclusion on this issue, I do so for different reasons.
[29]
The proper
approach to this question was reiterated by this Court in Friends of the
Canadian Wheat Board v. Canada (Attorney General), 2011 FCA 101, [2011] F.C.J.
No. 297 at paragraph 35, citing with approval the following passage in Canadian
Wheat Board v. Canada (Attorney General), 2009 FCA 214, [2010] 3 F.C.R. 374
at paragraph 46:
The first step in a vires
analysis is to identify the scope and purpose of the statutory authority
pursuant to which the impugned order was made. This requires that subsection
18(1) be considered in the context of the Act read as a whole. The second step
is to ask whether the grant of statutory authority permits this particular
delegated legislation (Jafari v. Canada (Minister of Employment and
Immigration), [1995] 2 F.C. 595, para. 14).
[30]
The Act
sets out in subsection 71(1) the general principle that inmates are entitled to
have reasonable contact, including visits and correspondence, with family,
friends and other persons, but that this entitlement is subject to reasonable
limits which may be prescribed for protecting the security of the penitentiary
or the safety of persons:
|
71. (1) In order to promote relationships
between inmates and the community, an inmate is entitled to have reasonable
contact, including visits and correspondence, with family, friends and other
persons from outside the penitentiary, subject to such reasonable limits
as are prescribed for protecting the security of the penitentiary or the
safety of persons.
[Emphasis added]
|
71. (1) Dans
les limites raisonnables fixées par règlement pour assurer la sécurité de
quiconque ou du pénitencier, le Service reconnaît à chaque détenu le
droit, afin de favoriser ses rapports avec la collectivité, d’entretenir,
dans la mesure du possible, des relations, notamment par des visites ou de la
correspondance, avec sa famille, ses amis ou d’autres personnes de l’extérieur
du pénitencier.
[Je souligne]
|
[31]
These
reasonable limits may be prescribed in regulations of the Governor-in-Council
as well as in Commissioner’s Directives made under sections 97 and 98 of the Act.
This flows from the definition of “regulations” in subsection 2(1) of the Interpretation
Act, R.S.C. 1985, c. I-21 which includes Commissioner’s Directives, since
these directives are orders or rules issued, made or established in the
execution of a power conferred by or under the authority of the Act: Canada (Attorney General) v. Mercier,
2010 FCA 167, 320 D.L.R. (4th) 429 at paragraph 58.
[32]
Under section 4 of
the Regulations, an institutional head (which means the person who is normally
in charge of the penitentiary: subsection 2(1) of the Act) is responsible,
under the direction of the Commissioner, for the care, custody and control of
all inmates in the penitentiary, as well as for the management, organization
and security of the penitentiary. The security of the penitentiary certainly
includes the control of illicit drugs, as notably provided in Commissioner’s
Directive 585 concerning a National Drug Strategy (“CD 585”), which further empowers
the institutional head to develop and implement various measures and procedures
for this purpose. The provisions of sections 1, 4, 5 and 12 of CD 585 read as
follows:
|
1. The Correctional Service of Canada, in achieving its Mission, will not
tolerate drug or alcohol use or the trafficking of drugs in federal
institutions. A safe, drug-free institutional environment is a
fundamental condition for the success of the reintegration of inmates into
society as law-abiding citizens.
4. The Institutional Head is responsible for ensuring that the
institution applies the Drug Strategy in accordance with the Corrections
and Conditional Release Act and related regulations, the Correctional
Service of Canada policies, standards and guidelines.
5. Each institution shall develop and implement drug strategies
to balance detection, deterrence and treatment that are reflective of the nature
of the institution.
12. Depending on the circumstances relating to the particular
inmate and on the organization of the institution, every institution shall
establish a procedure for assessing risk related to drug use and trafficking,
as well as procedures for reviewing the imposition of administrative
measures. This responsibility may rest with the Unit Board, the
Visitors Screening Board or the Program Board.
[Emphasis
added]
|
1. Dans l'accomplissement de sa Mission, le
Service correctionnel du Canada ne tolérera ni la consommation d'alcool ou
de drogues ni le trafic de drogues dans les établissements fédéraux. Un
milieu pénitentiaire sûr, libre de toute drogue, est une condition
fondamentale pour que les détenus puissent réintégrer la société à titre de
citoyens respectueux des lois.
4. Le directeur de l'établissement doit
veiller à ce que la stratégie antidrogue soit mise en application en
conformité avec la Loi sur le système correctionnel et la mise en liberté
sous condition et le règlement connexe, ainsi qu'avec les politiques,
les normes et les lignes directrices du Service correctionnel du Canada.
5. Tous les établissements doivent élaborer et mettre en
application des stratégies antidrogues adaptées à leur nature, de façon à
établir un équilibre entre la détection, la dissuasion et le traitement.
12. Selon les circonstances propres à chaque détenu et
l'organisation des établissements, ceux-ci doivent tous établir des
procédures pour évaluer le risque de consommation et de trafic de drogues et pour
examiner la possibilité d'imposer des mesures administratives. Cette
tâche peut être confiée au Comité de l'unité, au Comité de sélection des
visiteurs ou au Comité des programmes.
[Non souligné dans le texte original]
|
[33]
In addition, pursuant
to Commissioner’s Directive 770 concerning visiting, the institutional head
must specify the procedures to be followed and the conditions to be met with
respect to visiting, and pursuant to section 4 thereof, must also decide
whether or not visitor clearance will be given:
|
4. All inmates' visitors shall
complete an application and information form for the purpose of security
screening. A verification of the Canadian Police Information Centre files
shall then be conducted and subsequently updated at least every two (2) years
for all active visitors. On the basis of this security check and following
a review of possible restrictions, the Institutional Head shall decide
whether or not visitor clearance will be granted. Under special
circumstances, at the discretion of the Institutional Head, the security
screening may be waived.
[Emphasis added]
|
4. Toute personne désirant rendre
visite à un détenu doit remplir une formule de demande d'admission et de
renseignements aux fins du contrôle de sécurité. Une vérification des
fichiers du Centre d’information de la police canadienne doit être menée et,
par la suite, une mise à jour doit être effectuée au moins tous les deux (2)
ans pour les visiteurs actifs. Compte tenu de cette vérification et à la
suite d'un examen des restrictions possibles, le directeur de l’établissement
doit déterminer si l'autorisation de visite sera accordée. Dans des
circonstances particulières, le directeur peut décider de dispenser le
visiteur du contrôle de sécurité.
[Non souligné dans le texte original]
|
[34]
It is thus
abundantly clear that the Warden of the Ferndale Institution, as its
institutional head, could adopt and implement ISO 770 as a visitor screening
tool pursuant to the above mentioned statutory and regulatory authorities.
[35]
Nor is ISO
770 in conflict with subsection 91(1) of the Regulations further discussed
below, since this Institutional Standing Order simply seeks to inquire as to the
purpose of multiple inmate visits and sets up a process to ascertain if the
explanations given are viable. Consequently, any incompatibility with
subsection 91(1) of the Regulations would flow from the application of ISO 770,
and not from the adoption or the terms of that Institutional Standing Order.
[36]
Moreover,
as found by the applications judge, the adoption of ISO 770 was a decision
relating to security matters in which the inmates contribution was neither
necessary nor required under section 74 of the Act, which exempts such
decisions from inmate participation.
Was
the cancellation of the visiting clearance made in contravention of subsection
91(1) of the Regulations?
[37]
Having determined
that the Warden had the authority to adopt and implement ISO 770, it must now
be asked if the application of this institutional standing order to the
appellant’s visitors violated subsection 91(1) of the Regulations which provides
as follows:
|
91. (1) Subject to section 93,
the institutional head or a staff member designated by the institutional head
may authorize the refusal or suspension of a visit to an inmate where the
institutional head or staff member believes on reasonable grounds
(a) that,
during the course of the visit, the inmate or visitor would
(i) jeopardize
the security of the penitentiary or the safety of any person, or
(ii) plan
or commit a criminal offence; and
(b) that
restrictions on the manner in which the visit takes place would not be
adequate to control the risk.
|
91. (1) Sous réserve de
l'article 93, le directeur du pénitencier ou l'agent désigné par lui peut
autoriser l'interdiction ou la suspension d'une visite au détenu lorsqu'il a
des motifs raisonnables de croire :
a) d'une part, que le détenu ou le visiteur risque, au cours de
la visite :
(i) soit de
compromettre la sécurité du pénitencier ou de quiconque,
(ii) soit
de préparer ou de commettre un acte criminel;
b) d'autre part, que
l'imposition de restrictions à la visite ne permettrait pas d'enrayer le
risque.
|
[38]
In the
appellant’s view, paragraph 91(1)(a) of the Regulations places a heavy
onus on the institutional head to establish that there is either a risk to
security or safety, or a risk of a criminal offence before suspending or
refusing a visit. Consequently, in this view, even if a visitor could be asked
to justify the nature or quality of his relationship with an inmate or to justify
the reasons for visiting, the refusal to answer such enquiries could not, under
paragraph 91(1)(a), form on its own the basis for a belief on reasonable
grounds that there exists a risk to security or safety. The appellant would
restrict the CSC to making the inquiry by asking questions, but would leave the
CSC powerless to restrict visitors from visiting the institution in the event
they refuse to answer. I find this reasoning unpersuasive.
[39]
First, this reasoning
ignores the first guiding principle set out in paragraph 4(a) of the Act
which provides “that the protection of society be the paramount consideration
in the corrections process.” The protection of society includes the control of
the entry of illicit drugs in penitentiaries.
[40]
Second, and equally important
in my view, this reasoning also improperly imports into the administration of
federal penitentiaries and into the administrative decision making process
concerning inmate visits the notion of “reasonable belief” applicable in a
search, seizure and detention context. The same level of procedural protections
applicable in the context of search, seizure and detention does not necessarily
extend to an administrative law context. Rather, the context and purpose of the
decision to refuse visitor clearance must be taken into account in determining
the standard to which the decision maker is to be held in making that decision.
[41]
In this case, after
an extensive analysis, the Review Panel has noted that illicit drug trafficking
within penitentiaries is one of the major challenges facing federal
correctional authorities and that a substantial part of this trafficking
appears to be tied to inmate visits. One of the methods suggested to properly
address this problem is the development of a national visitor database allowing
cross-referencing of multiple inmate visits, since such visits raise prima
facie suspicions that the security of the institution could be jeopardized.
As I have already noted above, there is ample legislative and regulatory
authority for the CSC to require visitors to explain the reasons which underlie
their multiple inmate visits. In the absence of any response from the concerned
visitors, and in the context of determining the appropriate administrative
measures (as opposed to disciplinary measures) which need to be implemented for
managing inmate visits, it is reasonable for the CSC to hold a belief on
reasonable grounds that the prima facie suspicions are founded in the
case of a visitor who refuses to explain the nature of the relationship and the
purposes of the visits with multiple inmates.
[42]
Consequently, the absence
of an explanation from a visitor is an objectively verifiable indication that
can sustain a CSC belief on reasonable grounds, under the meaning of paragraph
90(1)(a) of the Regulations, that such a visitor would jeopardize the
security of the penitentiary during a visit. This is so since the subject of
the inquiry, as well as the decision making process, concern an administrative
action relating to the secure access to a penitentiary, and not, as the
appellant would have us believe, a matter relating to search, seizure or
detention, or otherwise affecting a constitutional right.
[43]
It is consequently
inappropriate to confuse the administrative law concept of reasonableness, which
is reflected in subsection 91(1) of the Regulations, with the wholly unrelated
notion of “reasonable belief” applicable in a search, seizure and detention
context. Administrative law is infused with the concept of reasonableness and
the administrative decisions of the correctional authorities relating to
visitors to federal institutions must be assessed in the light of that concept.
[44]
For similar reasons,
I am not persuaded by the appellant’s arguments based on paragraph 90(1)(b)
of the Regulations. In the appellant’s view, the visits cannot be cancelled
insofar as other restrictions could be implemented during the visits which would
address the drug trafficking concerns of the CSC, such as searches of visitors and
inmates through technical devices or drug detector dogs, or frisk searches and
strip searches. In the appellant’s view, since his visitors have refused to
explain their visits, he and his visitors could be subjected to more intensive
searches upon visits, thus answering the CSC’s concerns pertaining to drug
trafficking while allowing the visits to continue.
[45]
The appellant’s
position is inconsistent with the guiding principle set out in paragraph 4(d)
of the Act, which states that the CSC use the least restrictive measures
consistent with the protection of the public, staff members and offenders. The
physical search of an individual is normally strictly regulated by the law in
light of its intrusive nature. Asking a visitor to explain the nature and
purpose of the visits is much less intrusive and, in my considered opinion, is
a reasonable, simple, non-intrusive and appropriate method of visitor control
and screening. I agree with the applications judge that the approach taken by
the CSC is reasonable taking into account all the circumstances and is consistent
with the applicable legislative and regulatory provisions.
[46]
The appellant
fundamentally seeks to have this Court establish its own preferred method of
visitor control in federal penitentiaries. As the applications judge aptly
noted at paragraph 26 of her reasons, this is simply not a ground of judicial
review.
Did
the CSC violate the appellant’s rights by not providing him with an opportunity
to make representations concerning the cancellation of the visiting clearance?
[47]
Paragraph 91(2)(b) of the CRR Regulations
and paragraph 18(b) of CD 770 provide that in the event of the refusal or
suspension of a visit to an inmate, the inmate and the visitor are to be
promptly informed of the reasons and given an opportunity to make
representations with respect thereto. Paragraph 91(2)(b) of the Regulations
reads as follows:
|
91. (2) Where a
refusal or suspension is authorized under subsection (1),
(b) the institutional head
or staff member shall promptly inform the inmate and the visitor of the
reasons for the refusal or suspension and shall give the inmate and the
visitor an opportunity to make representations with respect thereto.
|
91. (2) Lorsque
l'interdiction ou la suspension a été autorisée en vertu du paragraphe
(1) :
b) le directeur du
pénitencier ou l'agent doit informer promptement le détenu et le visiteur des
motifs de cette mesure et leur fournir la possibilité de présenter leurs
observations à ce sujet.
|
[48]
Moreover,
sections 8 and 9 of ISO 770 provide that, when making a decision, the Visits Board
shall permit the concerned inmate to make representations, and that its decisions
are to be communicated to the affected parties within fourteen days of being
taken.
[49]
In this
case, the appellant was informed on December 23, 2008 that the visiting clearance
of his two visitors had been cancelled on October 2, 2008. Though the notice was
not as prompt as may have been desirable under paragraph 91(2)(b) above,
and though it was certainly not provided within the 14 days contemplated by ISO
770, the appellant was nevertheless informed of the reasons for the decision on
January 6, 2009, and was given an opportunity to discuss the matter on February
20, 2009 with the Visits Board of the institution. In addition, the appellant
availed himself of the inmate grievance process in order to challenge both the
legality of ISO 770 and the cancellation of the clearance, and he provided to
the CSC substantial representations and arguments supporting his contentions within
that process.
[50]
As noted
in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 at paragraphs 21 and following, and reiterated many times since, the
concept of procedural fairness is eminently variable and its content is to be
decided in the specific statutory, institutional and social context of each
case. In this case, the appellant has been informed of the decision and of the
reasons for which it was made, and has had an ample and full opportunity to
challenge this decision before the Visits Board and within the inmate grievance
process. In these circumstances, I cannot conclude that the appellant’s right to
make representations was affected to such an extent as to vitiate the
cancellation of the visiting clearance or to invalidate the third level
grievance decision upholding this cancellation.
[51]
As
concerns the late notice to the appellant informing him of the visits
cancellation, the Court has the discretion under subsections 18.1(5) and 28(2) of
the Federal Courts Act to dismiss an application for judicial review
notwithstanding technical irregularities in the process under review if no
substantial wrong or miscarriage of justice has occurred: Community Panel of
the Adams Lake Indian Band v. Dennis, 2011 FCA 37; [2011] F.C.J. No. 150
(QL) at para. 26-37; Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (QL), 172
N.R. 308 at paras. 9-10 (F.C.A.). That said, my comments in this respect should
not be interpreted as condoning the tardiness of the notice to the appellant.
The mandated timelines, absent special circumstances, should be respected by the
CSC.
[52]
Finally I
note that thought the appellant did make representations to the CSC concerning
the fact that his visitors had previously obtained clearance, the appellant did
not submit any cogent evidence as to the reasons for which these visitors were
visiting more than one inmate. I note that no letter or affidavit from the
concerned visitors concerning this matter was submitted by the appellant at his
meeting with the Visits Board or during the entire inmate grievance process.
Since the October 2, 2008 decision of the CSC cancelling the visits related to
the issue of multiple inmate visits, it was incumbent on the concerned parties
to submit a cogent explanation addressing this issue. In this context, I cannot
find that the applications judge erred in finding that the third level
grievance decision upholding the cancellation of the visiting clearance was reasonable.
Conclusion
[53]
I would
dismiss this appeal. The applications judge did not deem it appropriate to
award costs, and I would do the same for the purposes of this appeal.
"Robert M.
Mainville"
“I agree
M. Nadon
J.A.”
“I agree
Carolyne
Layden-Stevenson J.A.”
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