Date: 20040115
Docket: T-632-03
Citation: 2004 FC 50
MONTRÉAL, QUEBEC, THE 15TH DAY OF JANUARY 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
FRÉDÉRIC TERREAULT
Applicant
- and -
THE CORRECTIONAL SERVICE OF CANADA
and
THE SOLICITOR GENERAL OF CANADA
and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of the adoption of the Commissioner's Directive 566-4, entitled "Inmate Counts" (Directive 566-4), on October 17, 2001. At the time that the applicant filed his application, he was serving a penitentiary sentence at the Cowansville Institution (the institution). He has since been transferred to the Archambault Institution in Ste-Anne-des-Plaines.
THE FACTS
[2] In 1998, the Correctional Service of Canada (CSC), decided to consolidate all preventive security directives into a single directive accompanied by sub-directives. In January 1999, a task force made up of authorities from every region consolidated all of the information into a single draft policy.
[3] In September 1999, the first draft of the policy was sent to the Regional Administrators, Security, and to the heads of Operational Units (Wardens) for a first consultation. The respondents allege that the draft reflected recommendations that resulted from the CSC's national and regional hearings on inmate counts.
[4] In January 2001, once the final draft had been completed, it was sent for a final consultation by all of the Operational Units, the trade unions and the Correctional Investigator.
[5] In April 2001, the communications plan (attached to the affidavit of Julie Lévesque-Karével) was given to the Operational Units for the purpose of employee training and informing inmates in anticipation of the promulgation of Commissioner's Directive 566, entitled "Prevention of Security Incidents" (the Master Directive) and related sub-directives, including Directive 566-4.
[6] The applicant alleges that on April 28, 2001, the External Advisory Committee (EAC) met with the inmate committees. It was then that the inmate committees became aware of the fact that the CSC was about to introduce a new directive on counts. The applicant alleges that the EAC disagreed with this new directive because its implications were too restrictive and unusual for the inmates. Consequently, the EAC recommended that the inmate committees participate in the consultations on the development of Directive 566-4.
[7] The applicant contends that on May 30, 2001, the institution head gave the draft of Directive 566-4 to all of the inmate committees, while indicating to them that this draft would be implemented within the next few days. It was then that the applicant indicated to the Institution Head that the draft had not been signed or dated by the Commissioner and, consequently, that this draft was only for consultation.
[8] The applicant asked the CSC authorities to consult the inmates before adopting Directive 566-4. Further, the applicant requested that he be given the documents for this consultation. The applicant received some documents pertaining to the adoption of the impugned Directive.
[9] On June 17, 2001, the applicant filed a request for access to information in order to obtain more information about the rules and procedures followed by the CSC in the context of developing a Commissioner's directive. On September 4, 2001, the applicant advised the institution head that he wanted to be heard. Subsequently, on September 21, 2001, the applicant proceeded with a new request for access to information, in order to obtain more information about the consultation process.
[10] On October 17, 2001, Directive 566-4 was adopted.
[11] Then, on March 18, 2003, the applicant was informed of the fact that the CSC does not consult with inmates when decisions relate to security matters. Nevertheless, the institution's inmate committee had nevertheless been consulted regarding the time that the count would take place for the purposes of implementing the directive.
ANALYSIS
[12] Section 74 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) reads as follows:
| 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.
[emphasis added]
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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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[13] The applicant criticizes the CSC for having interpreted section 74 of the Act in such a way as to have dispensed itself from consulting with the inmates before adopting Directive 566-4. Consequently, the CSC, before the enactment Directive 566-4, failed to record the consultation results in writing and to send this documentation to the inmates concerned in order to have it revised or contested, in the context of a consultation process that did not take place. Accordingly, the applicant alleges that the Directive is invalid because there had not been a consultation. The respondents maintain that Directive 566-4 certainly pertains to a security matter and that the exception provided under section 74 of the Act applies.
[14] Directive 566-4 provides as follows:
POLICY OBJECTIVES
1. To establish standards for conducting formal and informal inmate and offender counts in institutions and Community Correctional Centres.
2. To monitor the whereabouts of inmates and offenders at all times.
3. To ensure the presence of a live, breathing body during counts.
AUTHORITY
4. Commissioner's Directive 566 - Prevention of Security Incidents.
DEFINITIONS
5. Formal Count: A process by which each inmate is counted individually, with no movement allowed and resulting in an official record which is maintained.
6. Informal Count: A process by which each inmate is counted individually without interference of activities in that area.
7. Stand-to count: Count during which the inmate is required to be in a standing position, either inside or outside the inmate's cell or bed location.
INSTITUTIONAL HEAD'S RESPONSIBILITIES
8. The Institutional Head shall ensure that a Standing Order is developed to meet the requirements of the institution for conducting formal and informal counts and procedures for discrepancies in the count.
9. The Institutional Institution Head shall ensure that at least four formal counts, one of which shall be a "stand to" count, are conducted during each 24-hour period. In Community Correctional Centres, at least two formal counts shall be conducted during each 24-hour period.
10. The Institutional Head shall ensure that a formal count is conducted of inmates and their visitors occupying private family visiting units, at least four times in a 24-hour period, at times that are reasonable and respectful of inmates and their visitors. This count will be visual and without obstruction.
11. The Institutional Head shall maintain a register of all inmates who are confined to the institution. The register shall indicate the inmate's name, FPS number, and cell or bed location.
12. The Institutional Head shall ensure a list is maintained of all inmates on register but not in the institution (i.e. inmates in outside hospital, on temporary absences, conditional release, court order, on bail, in segregation in another institution or unlawfully at large).
13. The Institutional Head shall ensure that a list of inmates assigned to each work or activity area is maintained and updated as required.
14. The Institutional Head shall ensure that appropriate action is taken, in accordance with institutional contingency plans, when an inmate is unaccounted for.
15. The Institutional Head shall ensure that counts in women's institutions are conducted as per the National Protocol on Cross-Gender Staffing.
PROCEDURES
16. Inmates shall be appropriately clothed during counts. Staff shall make every effort to respect the privacy and dignity of inmates during counts.
17. The officers conducting counts shall ensure that a live body is counted.
18. During a formal count, all inmates shall return to their cells unless otherwise prescribed in a Standing Order.
19. During a formal count, inmates in any location other than a cell or bed location shall be confined to that area until the institutional count is verified correct.
20. Formal counts shall be conducted by two officers.
21. Formal counts shall be recorded in writing and signed by the officers conducting the count.
22. Discrepancies in both formal and informal counts shall be immediately reported to the officer in charge of the institution.
23. The officer in charge shall verify the count.
[15] The CSC has the statutory obligation to enable inmates to participate in decisions concerning the inmate population, with the exception of issues relating to security matters (William Head Institution v. Canada (Correctional Service), [1993] F.C.J. No. 821 (F.C.T.D.) (QL); Alcorn v. Canada (Commissioner of Correctional Service), [1999] F.C.J. No. 330 at paragraph 100 (F.C.T.D.) (QL)). On the one hand, section 74 of the Act must be given a broad and liberal interpretation. On the other hand, it must be acknowledged that the inmates' right to participate is not absolute but it is subject to an important restriction when a "security matter" is at issue. It is up to the CSC to ensure the care and custody of inmates and to take all reasonable steps in this respect to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person's sense of personal dignity.
[16] Sections 3, 4 and 5 of the Act are relevant in this case:
| 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.
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3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
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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;(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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| 5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for
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5. Est maintenu le Service correctionnel du Canada, auquel incombent les tâches suivantes :
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| (a) the care and custody of inmates;
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a) la prise en charge et la garde des détenus;
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| (b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;
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b) la mise sur pied de programmes contribuant à la réadaptation des délinquants et à leur réinsertion sociale;
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| (c) the preparation of inmates for release;
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| c) la préparation des détenus à leur libération;(d) parole, statutory release supervision and long-term supervision of offenders; and
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d) la supervision à l'égard des mises en liberté conditionnelle ou d'office et la surveillance de longue durée de délinquants;
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| (e) maintaining a program of public education about the operations of the Service.
[emphasis added]
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e) la mise en oeuvre d'un programme d'éducation publique sur ses activités.
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[17] On the other hand, section 70 of the Act provides :
| 70. The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person's sense of personal dignity.
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70. Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des détenus et les conditions de travail des agents soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine.
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[18] The CSC's position that Directive 566-4 relates to a security matter seems reasonable to me under the circumstances. It is true that the Act does not define the expression "security matter" and it is not unreasonable to claim that inmate counts are directly connected to the supervision of inmates and to their well-being, therefore to matters of "security" in the broadest sense. Accordingly, the CSC was not acting ultra vires in adopting Directive 566-4 and in not consulting the inmates (although there could have been some consultation later on about the particulars relating to the implementation of the Directive).
[19] It is specifically indicated in Directive 566-4 that the authority is the Master Directive. The objective of the Master Directive is precisely to establish a framework for the prevention of "security incidents", including several elements such as, for instance, the inmate counts to supervise their comings and goings and their well-being at all times. As stated in the communications plan (exhibit K-1 of Julie Lévesque-Kéravel's affidavit), the review of escapes indicated that they resulted from, inter alia, the absence of formal counts and the fact that counts were not always carried out by two officers.
[20] Although the security level is relatively low when it comes to carrying out the stand-to inmate count, the Act does not make a distinction in terms of the different security levels. Also, this Court cannot substitute its choice of measures necessary to protect the public, officers and inmates, for that of the CSC, unless it is demonstrated that the measure at issue is unreasonable, which is not the case here.
[21] In the affidavit of Ricky Dubois, an inmate of the institution, he describes the procedure of the old count system:
[TRANSLATION] . . . during each formal count, the officers would ensure our "well-being" by making sure that we were alive. When necessary, by knocking on our cell doors so that we would move when we were sleeping. Ultimately, by entering the cell from which they could not get signs of life.
[22] The new Directive provides, for instance, that of the formal counts over a 24-hour period, one of these counts must be done with all of the inmates standing. The applicant, in his affidavit, states that the new Directive stemmed from a Coroner's report to the effect that, in Canadian penitentiaries, a large number of inmates were discovered after they had been dead for more than 24 hours. In his affidavit, Ricky Dubois states that this recommendation is based, in part, on the incompetence of CSC officers, i.e., that these officers, during counts, did not always ensure that the inmates were alive. On the other hand, this recommendation is meant to ensure that the inmates will protect themselves. On this point, Ricky Dubois indicates as follows:
[TRANSLATION] That they simply said to themselves that, if the CSC was not able to do its "job"; the inmates may as well be asked to protect themselves. In fact, for them, in making us stand up daily; it became impossible to pass the 24-hour mark before being discovered.
[23] As we can see, there is a logical connection between Directive 566-4 and achieving the objectives of the Act, that the living and working conditions of inmates and the working conditions of staff members be safe, healthful and free of practices that undermine a person's sense of personal dignity.
[24] In conclusion, the applicant has not persuaded me that there are grounds, in this case, for the Court to intervene under section 18.1 of the Federal Courts Act.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-632-03
STYLE OF CAUSE: FRÉDÉRIC TERREAULT v. THE CORRECTIONAL SERVICE OF CANADA ET AL.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 6, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: JANUARY 15, 2004
APPEARANCES:
FRÉDÉRIC TERREAULT FOR THE APPLICANT
(representing himself)
MICHELLE LAVERGNE FOR THE RESPONDENTS
SOLICITORS OF RECORD:
FRÉDÉRIC TERREAULT FOR THE APPLICANT
STE-ANNE-DES-PLAINES, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENTS
DEPUTY ATTORNEY GENERAL OF CANADA
MONTRÉAL, QUEBEC
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