Date: 20020425
Docket: A-209-99
Neutral citation: 2002 FCA 154
CORAM: ISAAC J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
GORDON ALCORN, of William Head Institution
DARRELL BATES, of Kent Institution
DANNY BOLAN, of Elbow Lake Institution
JON BROWN, of Matsqui Institution
SHAWN BUTTLE, of Regional Health Centre
GARY FITZGERALD, of Ferndale Institution
ANGUS MACKENZIE, of Mountain Institution, and
FABIAN PICCO, of Mission Institution
Appellants
and
THE COMMISSIONER OF CORRECTIONS and
THE DEPUTY COMMISSIONER OF CORRECTIONS,
PACIFIC REGION, CORRECTIONAL SERVICE OF CANADA
Respondents
Heard at Vancouver, B.C., on April 25, 2002.
Judgment delivered at Vancouver, B.C. on April 25, 2002
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 20020425
Docket: A-209-99
Neutral citation: 2002 FCA 154
CORAM: ISAAC J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
GORDON ALCORN, of William Head Institution
DARRELL BATES, of Kent Institution
DANNY BOLAN, of Elbow Lake Institution
JON BROWN, of Matsqui Institution
SHAWN BUTTLE, of Regional Health Centre
GARY FITZGERALD, of Ferndale Institution
ANGUS MACKENZIE, of Mountain Institution, and
FABIAN PICCO, of Mission Institution
Appellants
and
THE COMMISSIONER OF CORRECTIONS and
THE DEPUTY COMMISSIONER OF CORRECTIONS,
PACIFIC REGION, CORRECTIONAL SERVICE OF CANADA
Respondents
REASONS FOR JUDGMENT
SEXTON J.A.
[1] This is an appeal from the decision of Richard A.C.J., as he then was, who dismissed the application for judicial review brought by eight inmates of penitentiaries in British Columbia (the appellants).
[2] In 1994 the Correctional Service of Canada (C.S.C.) decided to implement a new national telephone system in Canadian correctional institutions. It examined various services which were available and concluded after extensive consideration of the potential impact on a number of factors, including inmate telephone practices, that it would implement the Millennium Phone System. Its main purpose was to address difficulties inherent in the previous telephone systems to which prisoners had access. The previous systems had demonstrated problems with respect to safety and security issues, issues related to phone resources and to administrative convenience. The chief goal however of the new system was to improve upon the security of correctional institutions and public safety.
[3] Under the Millennium System inmates would no longer be able to make local calls either free of charge or at a cost of 25 ¢ per call as in the past. Instead the new system required inmates to pay for local telephone calls at rates approximately $2.00 per call. These rates were set by the Canadian Radio and Television Commission (CRTC) and were implemented by BC Tel, the local service provider.
[4] The appellants challenged the decision to introduce the Millennium System by way of application for judicial review alleging that the respondents in making their decision had violated sections 4, 71(1), 74, 95 and 96 of the Canadian Corrections and Conditional Release Act as well as sections 7, 10(b) and 15 of the Canadian Charter of Rights and Freedoms.
Canadian Corrections and Conditional Release Act
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4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
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4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent:
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(a) that the protection of society be the paramount consideration in the corrections process;
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a) la protection de la société est le critère prépondérant lors de l'application du processus correctionnel;
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(b) that the sentence be carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, other information from the trial or sentencing process, the release policies of, and any comments from, the National Parole Board, and information obtained from victims and offenders;
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b) l'exécution de la peine tient compte de toute information pertinente dont le Service dispose, notamment des motifs et recommandations donnés par le juge qui l'a prononcée, des renseignements obtenus au cours du procès ou dans la détermination de la peine ou fournis par les victimes et les délinquants, ainsi que des directives ou observations de la Commission nationale des libérations conditionnelles en ce qui touche la libération;
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(c) that the Service enhance its effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system, and through communication about its correctional policies and programs to offenders, victims and the public;
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c) il accroît son efficacité et sa transparence par l'échange, au moment opportun, de renseignements utiles avec les autres éléments du système de justice pénale ainsi que par la communication de ses directives d'orientation générale et programmes correctionnels tant aux délinquants et aux victimes qu'au grand public;
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(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;
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d) les mesures nécessaires à la protection du public, des agents et des délinquants doivent être le moins restrictives possible;
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(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;
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e) le délinquant continue à jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux dont la suppression ou restriction est une conséquence nécessaire de la peine qui lui est infligée;
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(f) that the Service facilitate the involvement of members of the public in matters relating to the operations of the Service;
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f) il facilite la participation du public aux questions relatives à ses activités;
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(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
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g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;
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(h) that correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements;
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h) ses directives d'orientation générale, programmes et méthodes respectent les différences ethniques, culturelles et linguistiques, ainsi qu'entre les sexes, et tiennent compte des besoins propres aux femmes, aux autochtones et à d'autres groupes particuliers;
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(i) that offenders are expected to obey penitentiary rules and conditions governing temporary absence, work release, parole and statutory release, and to actively participate in programs designed to promote their rehabilitation and reintegration; and
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i) il est attendu que les délinquants observent les règlements pénitentiaires et les conditions d'octroi des permissions de sortir, des placements à l'extérieur et des libérations conditionnelles ou d'office et qu'ils participent aux programmes favorisant leur réadaptation et leur réinsertion sociale;
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(j) that staff members be properly selected and trained, and be given
(i) appropriate career development opportunities,
(ii) good working conditions, including a workplace environment that is free of practices that undermine a person's sense of personal dignity, and
(iii) opportunities to participate in the development of correctional policies and programs.
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j) il veille au bon recrutement et à la bonne formation de ses agents, leur offre de bonnes conditions de travail dans un milieu exempt de pratiques portant atteinte à la dignité humaine, un plan de carrière avec la possibilité de se perfectionner ainsi que l'occasion de participer à l'élaboration des directives d'orientation générale et programmes correctionnels.
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71. (1) In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contract, 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.
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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.
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74. The service shall provide inmates with the opportunity to contribute to decisions of the service affecting the inmate population as a whole, or affecting a group within the inmate population, except decisions relating to security matters.
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74. Le Service doit permettre aux détenus de participer à ses décisions concernant tout ou partie de la population carcérale, sauf pour les questions de sécurité.
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Section 74 of the Correction and Conditional Release Act
[5] The appellants alleged that no opportunity was given to them to provide input into the decision to implement the new Millennium Telephone System. The learned Motions Judge found as a fact that such opportunity was provided and that in any event there was no statutory obligation to consult with inmates under section 74 where the decision related to security matters. The learned Motions Judge found that the decision to implement the Millennium Telephone System did relate to security matters and the appellants concede this and the fact that security is necessary.
Section 71(1) and section 95 and 96 of the Corrections and Conditional Release Act
[6] The learned Motions Judge found that the decision to implement the Millennium Telephone System did not prevent an inmate from communicating with other persons and that section 95 and section 71(1) did not compel the respondents to give local telephone access to the inmates at no cost.
Charter - Section 15
[7] On appeal the appellants restricted their arguments concerning the Charter to section 15. Specifically they argued that in implementing the Millennium Telephone System the respondents violated the rights of the appellants under section 15 of the Charter by discriminating against them as federal prisoners and/or poor persons who do not have the money to pay for the additional costs imposed by the new system. The learned Motions Judge found that the appellants do not constitute an analogous group under section 15 of the Charter. He was not satisfied that the alleged discrimination invoked by the appellants was based on grounds relating to personal characteristics of the individual or group. He was of the view that any distinction in this case resulting from the new system is based on the economic situation of the inmates and that the Charter would provide no protection in those circumstances. We agree with his conclusions. This Court has held that prisoners per se do not constitute an analogous group under section 15. Sauvé v. Attorney General of Canada [2000] 2 F.C. 117 at 198.
[8] The learned Motions Judge noted that the constitutionality of the Millennium Telephone System had been judicially considered by the Trial Division in another case. The decision in that case upheld the constitutionality of the system. We agree with the statements of Mr. Justice Lutfy as he then was in Hunter v. Commissioner of Corrections Canada et al. (1995), 104 F.T.R. 77:
The respondents have established the positive objective of enhancing inmate telephone communication to assist rehabilitation. The precautionary objective of controlling those communications that might result in crime is similarly established...
I find that both objectives clearly reflect concerns which are pressing and substantial to Canadian society and require no further explanation.
Sections 3 and 4 Correction and Conditional Release Act
[9] The appellants argued additionally that section 3 of the CCRA sets out the purpose of the federal correctional system, and section 4 sets out the principles that should guide the government in achieving those purposes. Specifically, it was argued that the service utilized should use the least restrictive measures consistent with the protection of public, staff members and offenders.
[10] It was submitted that the implementation of the Millennium System did not take the least restrictive measures.
[11] It appears to us, from the evidence, that having regard to the concerns about security and the fact that the rates set for the telephone system were set by the CRTC and B.C. Tel and not the respondents, that the respondents have taken the least restrictive measures consistent with the protection of the public, staff members and offenders.
General Conclusion
[12] We are in agreement with the decision of the learned Motions Judge and agree with the clearly articulated reasons which he gave for his decision. We would say in addition that the complaints of the appellants focus rather on the cessation of the previous local phone service which involved a lesser cost to the inmates than the present system. That subsidized service was not an entitlement and its withdrawal cannot result in discrimination under section 15 of the Charter.
[13] In any event, the Appellants concede that the Respondents have made the decision to eliminate the Millennium System and to implement a new system which would result in cheaper telephone rates for prisoners. However, we were told that implementation of this decision has been delayed by reason of litigation and because the new system is still in the developmental stage. The Appellants wish to accelerate the change but were unable to provide the Court with any realistic suggestions as to how cheaper rates could be obtained at the present time. The Appellants simply propose that the Millennium System be immediately removed. That would have the effect of depriving the prisoners of any telephone system at all, which would hardly be an improvement over the present situation. The only alternative suggested by the Appellants is that the Respondents subsidize the inmates.
[14] This appeal will be dismissed with costs.
(Sgd.) "J. Edgar Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-209-99
STYLE OF CAUSE:Gordon Alcorn et al. v. The Commissioner of Corrections et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: April 25, 2002
REASONS FOR JUDGMENT : SEXTON J.A.
CONCURRED IN BY: ISAAC, MALONE JJ.A.
DATED: April 25, 2002
APPEARANCES:
Anne Pollak FOR THE APPELLANTS
Curtis Workun FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Prisoners' Legal Services FOR THE APPELLANTS
Abbotsford BC
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
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