Lord v. Canada, 2001 FCT 397

Date: 20010426

Docket: T-1354-97

                                                    Neutral Citation: 2001 FCT 397

BETWEEN:

                                  DAVID WILLIAM LORD

                                LORRAINE ELOUISE LORD

                                  VERA HANNAH LORD

                               CORALEE REBECCA LORD

                                  DAWN ANDREA LORD

                              DERIK CHRISTOPHER LORD

                                                                                             Plaintiffs

                                               - and -

                               HER MAJESTY THE QUEEN

                                                                                        Defendant

               REASONS FOR JUDGMENT AND JUDGMENT

BLAIS J.

[1]    The plaintiffs brought an action by way of a statement of claim against the defendant for damages suffered as a result of an incident that occurred at Kent Institution in British Columbia.

FACTS

[2]    The plaintiff, Derik Christopher Lord ["Derik Lord"], was an inmate of Kent Institution in British Columbia on May 27, 1997. The five other plaintiffs are members of Derik Lord's family. David William Lord ["David Lord"] is Derik Lord's father, Lorraine Elouise Lord ["Elouise Lord"] is Derik Lord's mother, Coralee Rebecca Lord ["Coralee Lord"] and Dawn Andrea Lord ["Dawn Lord"] are Derik Lord's sisters and Vera Hannah Lord ["Vera Lord"] is Derik Lord's grandmother.

The private family visiting program and the visual count procedure

[3]    While an inmate at Kent Institution [the "Institution"], Derik Lord was involved in the private family visiting program which was in place at the Institution. The program sought to support the development and delivery of family programs in the Institution and to provide inmates with the opportunity to use separate facilities where they could meet privately with their family to renew or continue personal relationships.

[4]    Thus, on May 27, 1997, the plaintiffs were participating in a private family visit at the Institution. The visit was supposed to terminate on May 30, 1997.

[5]                At the time, a new visual inspection policy was in place at the Institution. The policy required the visitors and the inmate to make contact with the Institution staff four times a day in order for the staff to proceed to a visual count of the visitors.

[6]                David Lord objected to this new visual inspection policy and refused to be submitted to the visual count. This lead to an argument between David Lord and the correctional supervisors at the Institution.

[7]                Since David Lord refused to comply with the visual count policy, the private family visit for Derik Lord was cancelled on May 28, 1997. The events relating to the termination of the visit will be discussed later in these reasons.

Hearing before the Visits Review Board

[8]                A Visits Review Board meeting was held on June 4, 1997 where Derik Lord was able to make representations on the continuation of visit suspensions. No other family members were permitted to attend or to speak at the meeting. According to the defendant, the Visits Review Board first hears submissions of the inmate, and at a separate hearing, the Visits Review Board hears submissions from any other visiting person.

[9]                On June 11, 1997, a hearing was held before the Visits Review Board where the plaintiffs were given an opportunity to appear and make submissions regarding the continuation of visit suspensions. Each plaintiff was given written notice of the review hearing and was told that a decision would be made on that date as to the continuation of visit suspensions. Due to the distance most visitors live from the Institution, only David Lord and Elouise Lord were able to make verbal presentations on the short notice. Elouise Lord was able to present a letter from Coralee Lord, verbal presentations on behalf of the other visitors, and herself, and received some feedback on the recommendations of the case management team in regards to her own visits only.

[10]            At the hearing, David Lord presented his personal view on the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, ["Charter"] and other legislation. David Lord was asked to confine his remarks to his visits with his son. It was explained to him that legal arguments concerning the Charter could only be decided by a court of law.

[11]            On June 13, 1997, the plaintiffs were informed that the Visits Review Board had decided to recommend continued private family visits for Elouise and Dawn Lord. It decided to allow Vera Lord open visits only and to suspend visits for David and Coralee Lord. All plaintiffs were advised in writing of the decisions regarding visiting privileges.

[12]            Elouise Lord wrote to the Institution on September 24, 1997, requesting clarification as to whether David Lord and Coralee Lord would be permitted visiting privileges following the original six months suspension.

[13]            In a letter dated October 7, 1997, the deputy warden, Doug Richmond, indicated that the suspension would be lasting longer than the six months that were originally imposed.

THE APPLICANT'S POSITION

[14]            The plaintiffs submit that the Correctional Service of Canada's treatment of visitors during the termination of the private family visit at the Institution on May 28, 1997 was arbitrary and done without permitting a fair hearing to all involved. The plaintiffs allege that it was done in violation of section 52 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3 ["Constitution Act"] and in violation of sections 1, 2, 7, 12 and 15 of the Charter.

[15]            The plaintiffs further contend that the termination of the private family visit at the Institution on May 28, 1997 was done in violation of sections 3, 4, 5, 69, 71, 76 and 91 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, and in violation of sections 2, 3, 4 and 66 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

[16]            The plaintiffs contend that part of the duty to act fairly is to inform visitors, prior to the visit, of the rules and regulations that are to be followed. The plaintiffs admit that the policies and procedures were outlined for some of the plaintiffs during the community assessments for participation in the program. However, the plaintiffs contend that some of the policies and procedures had since been changed and that there had been no notification, no advance warning given for these changes. Also, some of the plaintiffs did not have a community assessment done, as a result, they did not get the overview of the policies and procedures.

[17]            The plaintiffs also submit that the termination of the private family visit was done in violation of section 279.1 of the Criminal Code, R.S.C. 1985, c. C-46 and that by demanding that Derik Lord's family give up their rights and freedoms under the Charter in order to continue with visits and private family visits at the Institution, Derik Lord is held hostage until his family complies. The plaintiffs contend that David Lord and Coralee Lord's rights under the Charter continue to be violated since they are not allowed to see Derik Lord. The plaintiffs allege that the continued suspension of visits for two of the plaintiffs continues the emotional trauma and hardship.

[18]            It is submitted that the manner in which the visitors were thrown out without being permitted to pack their belongings was done with unnecessary force and roughness leading to emotional shock and trauma for all the plaintiffs. Elouise Lord was taken by ambulance from the Institution to the hospital because of the trauma and Vera Lord's age predisposes her to ill effects from severe emotional trauma.

[19]            The plaintiffs' position is that the house that they occupied for the private family visit was their residence for the seventy-two hours of the visit and that the guards had no legal right to enter their residence. No warrant was ever presented nor was there any indication of the potential of harm occurring to any one present.

[20]            The plaintiffs submit that throughout the entire incident, all aggression, in the form of verbal threats and then finally a physical assault, was from the staff of the Institution. The plaintiffs contend that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The plaintiffs submit that their liberty and security of person were violated every time they were forced to go outside and be counted by a guard.

[21]            The plaintiffs further contend that David Lord was subjected to cruel and unusual treatment or punishment when he was forced to get up in the morning and go outside to be counted. Since he was working a steady night shift, he was accustomed to sleeping to about 11:00 a.m. every day.

[22]            It is submitted that the Institution charged, tried, convicted and sentenced Vera Lord of assault without once presenting the charges in court. The plaintiffs allege that the Correctional Service of Canada violated Vera Lord's rights under subsection 11(d) of the Charter and breached their duty to act fairly. Vera Lord was not made aware of the allegations made against her in any manner previous to the meeting or to communication of the decision being made. She was not given the opportunity to refute the allegations made against her. Vera Lord was only advised of the allegations by letter dated June 13, 1997 and written by Diane Knopf of the Institution, that the Institution viewed her behaviour on May 28, 1997, involved the assault of an officer.

[23]            The plaintiffs submit that the visual count procedures have been followed in an arbitrary manner since the incident which lead to this action. In particular, Elouise Lord has participated in private family visits in which the counts were not done according to the schedule set out in the house. The counts were done occasionally, or not at all. This was brought to the attention of the Institution staff and to Correctional Service staff in Ottawa and the response was that there was no record kept for these counts. The plaintiffs wonder why, if the counts of visitors are so unimportant, the incident occurred. The plaintiffs submit that the incident occurred because of prejudice against the plaintiffs and solely to break the family ties which the visits are meant to maintain.

[24]            The plaintiffs therefore claim:

a)        Costs for the trip to the hospital for Elouise Lord;

b)        Damages for the emotional trauma caused by the ending of the visits;

c)        Damages for the emotional shock and trauma caused by the continued suspension of visits;

d)        Damages for loss of family support and weakening of ability to maintain family ties;

e)        Damages for discrimination showed in the methods used to terminate the visit;

f)         Damages for loss of reputation due to the articles in the press;

g)        Relief in the form of Court direction that the Institution be told to revamp the orders and rules made in order that they be made to comply with the law of Canada, specifically, the Constitution Act, section 52, Canadian Charter of Rights and Freedoms, sections 1 and 2, Corrections and Conditional Release Act, sections 1, 2, 3, 4, 5, 9, 38, 39, 40, 41, 69, 71 and 76, Canadian Human Rights Act, sections 2, 3, 5 and 66 and section 279.1 of the Criminal Code;

h)        Relief in the form of Court direction to stop all further discriminatory procedures currently being followed in regards to visitors.

THE DEFENDANT'S POSITION

[25]            The Commissioner's Directive (CD) No. 770 sets out a requirement to establish procedures for regular contact by Institution staff with an inmate and his family during private family visit. The Institution developed a visual inspection policy in consultation with inmate representative which minimizes intrusiveness while ensuring the safety of visitors and the security of the institution.

[26]            According to the defendant, prior to any private family visit, the plaintiffs were the subject of a community assessment. The purpose of the community assessment was to assess the eligibility of the plaintiffs for participation in the private family visiting program. During the community assessment the policies governing the private family visits were explained to the plaintiffs. The defendant submits that the plaintiffs were given adequate notice of the visual count policy during private family visits. A notice concerning the visual inspection policy was placed in each private family visiting unit in clear view. The officer conducting the count explained the process. The correctional supervisor later explained the procedure in detail.

[27]            The defendant alleges that the plaintiffs were given written notice of the hearing before the Visits Review Board and that during the review, the relevant law and policies were again explained to the plaintiffs. The defendant submits that the plaintiffs were given an opportunity to appear and make submissions.

[28]            The defendant specifically denies that the plaintiffs are entitled to any relief claimed and denies that the plaintiffs suffered damages as alleged or at all and puts the plaintiffs to the strict proof thereof.

ISSUES

[29]            In their pleadings, the plaintiffs submitted the following questions to the Court:                                                                            

Relating to the visual inspection policy

1.        Does the visual inspection policy in place at the Institution infringe sections 1, 2, 7, 12 and 15 of the Charter?

2.        Is the visual inspection policy in place at the Institution contrary to sections 3, 4, 5, 69, 71, 76 and 91 of the Corrections and Conditional Release Act?

3.        Is the visual inspection policy in place at the Institution contrary to sections 2, 3, 4 and 66 of the Canadian Human Rights Act?

4.        Did the defendant breach its duty to act fairly in failing to inform visitors, prior to their visit, of the rules and regulations that are to be followed during the private family visit at the Institution on May 28, 1997?

5.        Was David Lord subjected to cruel and unusual treatment or punishment when he was forced to get up in the morning and go outside to be counted since he was working a steady night shift, he was accustomed to sleeping to about 11:00 a.m. every day?

Relating to the termination of the Private Family Visit

6.        Did the Correctional Service of Canada have a duty to give a fair hearing to the plaintiffs before terminating the private family visit at the Institution on May 28, 1997?

7.          Did the Institution charge, try, convict and sentence Vera Lord of assault without giving her the opportunity to refute the allegations made against her?

8.        Was the house occupied by the plaintiffs during the private family visit their residence for the seventy-two hours of the visit and did guards have the right to enter their residence? Was a warrant needed?

9.        Was the termination of the private family visit at the Institution on May 28, 1997 done in violation of section 52 of the Constitution Act and in violation of sections 1, 2, 7, 12 and 15 of the Charter.

10.      Was the termination of the private family visit at the Institution on May 28, 1997 done in violation of sections 3, 4, 5, 69, 71, 76 and 91(1) of the Corrections and Conditional Release Act?

11.      Was the termination of the private family visit at the Institution on May 28, 1997 done in violation of sections 2, 3, 4 and 66 of the Canadian Human Rights Act?

12.      Was the termination of the private family visit done in violation of section 279.1 of the Criminal Code of Canada?

13.      Were David Lord and Coralee Lord's rights under the Charter violated by the continued suspension of visits?

14.      Was the manner in which the plaintiffs were made to leave, without being permitted to pack their belongings, done with unnecessary force and roughness? If so, did the plaintiffs suffer damages?

[30]            In my view, issues raised by questions 8 and 12 are frivolous and do not deserve a detailed answer. Suffice it to say that the plaintiffs could not succeed on these issues.

[31]            As for questions 9, 10, 11, they are addressed by other questions and it is not necessary to address them separately.

[32]            Therefore, the following questions will be answered in this judgment:

Relating to the visual inspection policy

1.        Does the visual inspection policy in place at the Institution infringe sections 1, 2, 7, 12 and 15 of the Charter?

2.        Is the visual inspection policy in place at the Institution contrary to sections 3, 4, 5, 69, 71, 76 and 91 of the Corrections and Conditional Release Act?

3.        Is the visual inspection policy in place at the Institution contrary to sections 2, 3, 4 and 66 of the Canadian Human Rights Act?

4.        Did the defendant breach its duty to act fairly in failing to inform visitors, prior to their visit, of the rules and regulations that are to be followed during the private family visit at the Institution on May 28, 1997?

5.        Was David Lord subjected to cruel and unusual treatment or punishment when he was forced to get up in the morning and go outside to be counted since he was working a steady night shift, he was accustomed to sleeping to about 11:00 a.m. every day?

Relating to the termination of the Private Family Visit

6.        Did the Correctional Service of Canada have a duty to give a fair hearing to the plaintiffs before terminating the private family visit at the Institution on May 28, 1997?

7.          Did the Institution charge, try, convict and sentence Vera Lord of assault without giving her the opportunity to refute the allegations made against her?

8.        Were David Lord and Coralee Lord's rights under the Charter violated by the continued suspension of visits?

9.        Was the manner in which the plaintiffs were made to leave, without being permitted to pack their belongings, done with unnecessary force and roughness? If so, did the plaintiffs suffer damages?

ANALYSIS

The visual inspection policy

[33]            The Institution's duty to adopt a visual inspection policy is found under the Commissioner's Directive No. 565 made pursuant to the Corrections and Conditional Release Act, which regulates contacts and visits for an inmate in a penitentiary.

[34]            Subsection 71(1) of the Corrections and Conditional Release Act reads:

[35]            Section 97 of the Corrections and Conditional Release Act states that the Commissioner is entitled to make rules:

[36]            The Commissioner's Directive No. 565 indicates:

1. Does the visual inspection policy in place at the Institution infringe sections 2, 7, 12 and 15 of the Charter?

[37]            Sections 2, 7, 12 and 15 of the Charter reads as follow:

SECTION 2

[38]            Regarding section 2 of the Charter, the plaintiffs argue that the visual inspection policy infringed their right to freedom of association under subsection 2d) of the Charter.

[39]            David Lord has made this argument before the British Columbia Supreme Court and Court of Appeal when he appealed his conviction of trespass (R. v. Lord, [1998] B.C.J. No. 2306 (S.C.); [1998] B.C.J. No. 2963 (C.A.).).

[40]            In those cases, David Lord argued that the count policy violated his right of association.

[41]            The British Columbia Supreme Court held:

In terms of the "rights" issue advanced by the accused whether visitation is a right or a privilege, it is always subject to reasonable regulations and rules established by the appropriate prison authority.

Much law has been cited by the accused and I have not overlooked any of the case. He was representing himself. He conceded that rules are necessary and that visitors must obey rules provided they are reasonable. That brings this case down to only one issue: was the rule that a visitor must "stand to" a reasonable rule.

[...]

I agree with the trial judge that the Standing Order, requiring visitors to "stand to" and be counted while occupying a family unit is not something that can be said to violate the accused"s right of association

The rule in the warden's view (and I do not disagree) is not an unreasonable rule, and it is one, visitors must be prepared to obey.

[42]            The Court of Appeal, in dismissing the appeal, stated:

Having read and considered the appeal judge's reasons I am unable to find that he assigned greater importance to the Standing Order than to the Charter. His decision is simply that the circumstances do not engage Mr. Lord's Charter rights.

Even if it could be said that the Charter issues raised by Mr. Lord are questions of law alone, I do not think that they are matters of general importance. The facts are highly unusual and unlikely to occur again. The connection with the Charter is, in my opinion, highly tenuous and a decision on the points raised by Mr. Lord are unlikely to be of much general interest.

[43]            In these cases, the courts did not undertake the Charter analysis since they found that the rule was reasonable, thus, the Charter analysis was unnecessary.

[44]            Nevertheless, I am ready to analyse this Charter issue. It seems generally recognized that freedom of association under subsection 2d) of the Charter does not include the parent/child relationship.

[45]            In Downes v. Canada (MEI) (1986), 4 F.T.R. 215 (T.D.), McNair J. held:

Re Gittens and The Queen (1982), 137 D.L.R. (3d) 687 (F.C.T.D.) was the case of an application by a citizen of Guyana for an interlocutory injunction to restrain the execution of a deportation order made against him under the Immigration Act, 1976. One of the arguments pressed in support of the application was "freedom of association" under s. 2(d) of the Charter.

Mr. Justice Mahoney disposed of this argument at pp. 691-92:

Freedom of association, as invisaged by s. 2(d) of the Charter, will not be violated by execution of the deportation order. The applicant's deportation will sever immediate links with family, friends and others. To the extent that they are licit associations, they are social and familial. Assuming that they are the type of association contemplated by s. 2(d), freedom of association is guaranteed, as provided in s. 1 of the Charter, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Execution of the deportation order is prescribed by law. The reasonableness of the right of a free and democratic state to deport alien criminals is self-evident and, therefore, demonstrably justified.

I hasten to add that the reference to "alien criminals" has no application whatever to the senior applicant, who is by any acceptable standard a responsible and loving parent.

Public Service Alliance of Canada v. The Queen, [1984] 2 F.C. 889 (F.C.A.) was an appeal from a judgment at trial dismissing the appellant's action for a declaration that certain statutory provisions applicable to the public service were invalid, inter alia, because they abridged the right to freedom of association guaranteed by s. 2(d) of the Charter. The court dismissed the appeal on this issue on the ground that the right to bargain collectively was not guaranteed by s. 2(d). Mahoney, J., said at p. 895:

The right of freedom of association guaranteed by the Charter is the right to enter into consensual arrangements. It protects neither the objects of the association nor the means of attaining those objects.

(Emphasis added)

Implicit in this result was the learned judge's view that the "living tree" metaphor in reference to the Charter could not reasonably sustain at that stage of development an interpretation of "association " in any but its ordinary, everyday meaning.

In the result, I find that the right of freedom of association in the present case does not extend on balance of probability to embrace the filial association of parent and child in its ordinary, everyday meaning and in the context of the normal family unit, seen as the object of such association.

[46]            In Catholic Children's Aid Society of Metropolitan Toronto v. S.(T.) (1989), 69 O.R. (2d) 189 (Ont. C.A.) the Court of Appeal held:

Counsel for the appellant argued that terminating the access of the birth mother, in order to prepare for adoption in this case, would constitute a violation of her "freedom of association". The only authority he could refer to in support of his proposition that this freedom applies to interpersonal relationships like that of parent and child, is a dictum of Kerans J.A. (the other two members concurred in the result, but not the detailed discussion) of the Alberta Court of Appeal in Black v. Law Society of Alberta (1986), 27 D.L.R. (4th) 527, [1986] 3 W.W.R. 590, 44 Alta. L.R. (2d) 1, at pp. 542-3:

In my view, the freedom includes the freedom to associate with others in exercise of Charter-protected rights and also those other rights which -- in Canada -- are thought so fundamental as not to need formal expression: to marry, for example, or to establish a home and family, pursue an education or gain a livelihood.

On the other hand, there have been a number of cases which have specifically rejected claims that family relationships were protected by the freedom of association in s. 2(d) of the Charter. For example, in Re White and Director of Child Welfare (1985), 64 A.R. 81 (Alta.Q.B.), it was held that s. 2(d) does not apply to interests of a grandparent where custody or guardianship is at issue; in Re Downes and Minister of Employment & Immigration (1986), 4 F.T.R. 215 (F.C.T.D.), it was held that s. 2(d) does not apply to a filial relationship to prevent deportation of the father; in Horbas v. Minister of Employment & Immigration (1985), 22 D.L.R. (4th) 600, [1985] 2 F.C. 359 (F.C.T.D.), it was held that the freedom of association under the Charter does not include the right of a citizen and his non-citizen wife to cohabit in Canada; and in Nova Scotia (Minister of Community Services) v. S.(M.K.) (January 19, 1989, N.S.C.A., unreported) [since reported 88 N.S.R. (2d) 418, 19 R.F.L. (3d) 75], it was held that the freedom under Charter s. 2(d) does not include a right to associate in a family unit so as to prevent an order committing a child to the care and custody of the Minister.

In another case -- Shingoose v. Minister of Social Services (1983), 149 D.L.R. (3d) 400, 26 Sask. R. 235 (Sask. Q.B.) (leave to appeal allowed, 4 D.L.R. (4th) 765, 31 Sask. R. 75 (Sask. C.A.), but abandoned on February 19, 1984) -- the court was concerned with a challenge to child apprehension provisions on the basis that they infringed the freedom of association between a mother and her child. Halvorson J. held (at p. 403):

Even if s. 2(d) were designed to protect the association between child and parent, which I doubt, s. 1 of the Charter must prevail to limit this freedom. When a child is taken into protective custody, it is because the officer has reasonable grounds to believe the health and welfare of the child is in immediate jeopardy. A deprivation of association is justified in the best interests of the child. Loss of the freedom of association in such circumstances is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

I believe that these comments are equally applicable to our case. However, like the courts referred to above, I would also hold that here there is no violation of s. 2(d) of the Charter.

Although I would not suggest that the evolution of the scope of the freedom should be limited by what has traditionally been considered to be within that scope, at least in the early stages of Charter interpretation it has to be an important starting point. The public nature of the fundamental freedoms has been emphasized. Not having been a totalitarian society, we have not been so much concerned with what one may say or write to oneself. It is the communication to others that we have considered important to protect and on which some reasonable limits, like the laws of defamation, have been applied. Similarly, the issues in our history concerning freedom of religion have not been concerned with the private conscience of the individual, as much as with public manifestation of it by individuals or the collective expression of it. The freedoms of assembly and association are necessarily collective and so mostly public. Our constitutional concerns have not been with assemblies within families or associations between family members. Rather, the protections we have been concerned with are for those assemblies and associations that take us outside the intimate circle of our families. The family is a collective, but the desire of one family member to associate with another is not so much for the purpose of pursuing goals in common, nor even pursuing activities in common (Reference re Public Service Employee Relations Act (1987), 38 D.L.R. (4th) 161 at p. 226, [1987] 1 S.C.R. 313 (S.C.C.), per McIntyre J.), as it is merely because they are members of a family. A parent and child may associate for an economic goal, for example, but the motivation comes from their relationship, rather than a relationship being created because of the economic motivation. The desire of a parent to be with a child has no goal or purpose like that of associations for economic, political, religious, social, charitable or even entertainment purposes. If it has any purpose it is that of loving or being loved, of comforting and protecting, or being comforted and protected. That may be a right that must be protected, as in the International Covenant on Civil and Political Rights, in which art. 22 deals with freedom of association, while art. 23(1) provides that:

23(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

[47]            Although the courts in the above cases held that freedom of association under subsection 2d) of the Charter does not include family relationships, the courts still made a Charter analysis in order to determine whether section 1 of the Charter would justify the denial of the right.

[48]            In the case at bar, even if freedom of association was interpreted to include family relationships, I cannot find that the freedom of association would be infringed by a visual count procedure in a penitentiary. The visual count procedure cannot be said to prevent the plaintiffs association. In any event, section 1 of the Charter would justify the denial of the freedom of association. In my opinion, the visual count policy is a reasonable limit prescribed by law. The objective of the policy is to ensure the security of everyone in a maximum security institution by seeing that everyone is accounted for.

[49]            The objective of this visual count policy is to ensure the protection of the inmates, the visitors and the staff at the Institution at all times. Thus, the objective is sufficiently important. The measure adopted has a rational connection to the objective and impairs as little as possible to the freedom. There is a rational connection between the count procedure and the objective which is to ensure the security of everyone in the Institution. The measure also impairs as little as possible the freedom of association of the plaintiffs since it happens only four times a day for a very brief period of time. Furthermore, the measure is the least intrusive since the visitors are to meet the Institution staff at the door of the family visiting unit. I believe that the effects of the policy do not severely trench the plaintiffs' rights and that the objective of the policy is not outweighed by the infringement of the plaintiff's freedom of association.

[50]            Thus, this argument fails.

SECTION 7

[51]            Under this section, the plaintiffs argue that the policy infringe their right to liberty of the person.

[52]            Although the plaintiffs' liberty of movement may be infringed for the brief period of time when the Institution staff proceeded to a visual count, I believe that the same analysis which was made under section 1 of the Charter for the argument brought by the applicants under section 2 of the Charter is applicable. Thus, even if such an infringement exists, section 1 justifies the infringement of the plaintiffs right to liberty of the person, if such an infringement exists.

[53]            This argument also fails.

SECTION 12

[54]            As for the argument that the visual count policy amounts to cruel and unusual treatment or punishment, it cannot succeed.

[55]            In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, the Supreme Court explained section 12 as follows:

In order to come within the protection of s. 12, the appellant must demonstrate two things: first, that she is subjected to treatment or punishment at the hands of the state, and second, that such treatment or punishment is cruel and unusual. In this case, the appellant alleges that the prohibition on assisted suicide has the effect of imposing upon her cruel and unusual treatment in that the prohibition subjects her to prolonged suffering until her natural death or requires that she ends her life at an earlier point while she can still do so without help. In my opinion, it cannot be said that the appellant is subjected by the state to any form of punishment within the meaning of s. 12. The question of whether the appellant is subjected to "treatment", however, is less clear.

The degree to which "treatment" in s. 12 may apply outside the context of penalties imposed to ensure the application and enforcement of the law has not been definitively determined by this Court. In R. v. Smith, [1987] 1 S.C.R. 1045, in which this Court struck down the minimum seven-year sentence for importing narcotics, Lamer J. (as he then was) referred to the lobotomisation of certain dangerous offenders and the castration of sexual offenders as examples of "treatment" which would be contrary to s. 12 as opposed to punishment. Even granting that there may be a distinction in purpose between punishments such as imprisonment or lashings, which involve the convicted person paying his debt to society for the wrong he has committed, and the examples of treatment offered by Lamer J. which are arguably primarily concerned with protecting society from the offender, I would note that these treatments are still imposed by the state in the context of dealing with criminal behaviour.

In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, this Court suggested that s. 12 may have application outside of the criminal context. In that case, I found, for the Court, that the deportation order at issue was not a punishment for any particular offence, but that (at p. 735):

Deportation may, however, come within the scope of a      "treatment" in s. 12. The Concise Oxford Dictionary (1990) defines "treatment" as "a process or manner of behaving towards or dealing with a person or thing...." It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized ... is not cruel and unusual.

While the deportation order in Chiarelli was not penal in nature as it did not result from any particular offence having been committed, it was nonetheless imposed by the state in the context of enforcing a state administrative structure -- in that case, the immigration system and its body of regulation. The respondent Chiarelli in that case, who had not complied with the requirements imposed by the regulatory scheme, was dealt with in accordance with the precepts of the administrative system. In that regard, any "treatment" was still within the bounds of the state's control over the individual within the system set up by the state.

Certain decisions of lower courts have held that "treatment" should be seen to have a much broader scope than "punishment". In Soenen v. Director of Edmonton Remand Centre (1983), 6 C.R.R. 368 (Alta. Q.B.), a case dealing with restrictions imposed on an accused in remand custody while awaiting trial, McDonald J. stated as follows, at p. 372:

In my view the word "treatment" is not limited in its breadth by the word "punishment".... Moreover, the word "treatment" is a more general word than "punishment", and there is no apparent common denominator between the two which, even if the order of the words were reversed, could call the ejusdem generis rule into play.

Similarly, in R. v. Blakeman (1988), 48 C.R.R. 222 (Ont. H.C.), Watt J. held that, at a preliminary level, subjecting an ill individual to a trial may be cruel treatment. He commented as follows, at p. 239:

"Treatment" connotes any conduct, action or behaviour towards another person. It is a word of more expansive or comprehensive import than is its disjunctive partner "punishment", in that it extends, or potentially so, to all forms of disability or disadvantage and not merely to those imposed as a penalty to ensure the application and enforcement of a rule of law.

Other actions outside the penal context which have been seen to constitute "treatment" for the purposes of s. 12 include strip searches (Weatherall v. Canada (Attorney General), [1988] 1 F.C. 369 (T.D.), overturned on other grounds, [1989] 1 F.C. 18 (C.A.)), and medical care imposed without consent on mentally ill patients (Howlett v. Karunaratne (1988), 64 O.R. (2d) 418). But see Re McTavish and Director, Child Welfare Act (1986), 32 D.L.R. (4th) 394 (Alta. Q.B.), in which it was held that s. 12 "may even be restricted to penal or quasi-penal matters" (p. 409).

For the purposes of the present analysis, I am prepared to assume that "treatment" within the meaning of s. 12 may include that imposed by the state in contexts other than that of a penal or quasi-penal nature. However, it is my view that a mere prohibition by the state on certain action, without more, cannot constitute "treatment" under s. 12. By this I should not be taken as deciding that only positive state actions can be considered to be treatment under s. 12; there may well be situations in which a prohibition on certain types of actions may be "treatment" as was suggested by Dickson J. of the New Brunswick Court of Queen's Bench in Carlston v. New Brunswick (Solicitor General) (1989), 43 C.R.R. 105, who was prepared to consider whether a complete ban on smoking in prisons would be "treatment" under s. 12. The distinction between that case and all of those referred to above, and the situation in the present appeal, however, is that in the cited cases the individual is in some way within the special administrative control of the state. In the present case, the appellant is simply subject to the edicts of the Criminal Code, as are all other individuals in society. The fact that, because of the personal situation in which she finds herself, a particular prohibition impacts upon her in a manner which causes her suffering does not subject her to "treatment" at the hands of the state. The starving person who is prohibited by threat of criminal sanction from "stealing a mouthful of bread" is likewise not subjected to "treatment" within the meaning of s. 12 by reason of the theft provisions of the Code, nor is the heroin addict who is prohibited from possessing heroin by the provisions of the Narcotic Control Act, R.S.C., 1985, c. N-1. There must be some more active state process in operation, involving an exercise of state control over the individual, in order for the state action in question, whether it be positive action, inaction or prohibition, to constitute "treatment" under s. 12. In my view, to hold that the criminal prohibition in s. 241(b), without the appellant being in any way subject to the state administrative or justice system, falls within the bounds of s. 12 stretches the ordinary meaning of being "subjected to ... treatment" by the state.

For these reasons, in my view s. 241(b) does not violate s. 12.

[56]            In light of the above jurisprudence, it seems that the term "treatment" could be referred to in a non penal or quasi-penal context, where it can be said that the state exercises a control over an individual. To paraphrase what was stated in Chiarelli, the visual count policy might be considered to be a treatment when considering that the policy is imposed by the state in the context of enforcing a state administrative structure, i.e. the correctional system and its body of regulation. As in Chiarelli, the person who does not comply with the requirements imposed by the regulatory scheme, is dealt with in accordance with the precepts of the administrative system.

[57]            Nevertheless, even if the visual count policy was to be considered a "treatment", it cannot be said to constitute a cruel and unusual treatment. As was stated in R. v. MacDonald, [1997] O.J. No. 1806:

The criterion to be applied in determining whether a punishment is cruel and unusual within the meaning or s. 12 of the Charter is whether the punishment prescribed is "so excessive as to outrage standards of decency": Smith v. The Queen (1987), 34 C.C.C. (3d) 97 (S.C.C.) at 139 per Lamer J. (as he then was). The test for s. 12 Charter review is thus one of gross disproportionality: it is aimed at punishments that are more than merely excessive.

[58]            In the case at bar, the policy cannot be said to be grossly disproportionate. Thus, the argument fails.

SECTION 15

[59]            As for this section, the plaintiffs' argument is that the policy has been followed in an arbitrary manner and that the policy was passed for their sake.

[60]            The plaintiffs failed to bring evidence that they have been treated in a discriminatory fashion based on grounds enumerated in section 15. Presently, it cannot be said that the plaintiffs are treated differently from the other visitors. The policy applies to all visitors within the penitentiary and unless evidence to the contrary, the Institution staff applies it uniformly to all visitors. If the plaintiffs are treated differently, I am not convinced that they are treated differently based on the grounds enumerated in section 15.

[61]            Section 15 analysis was stated as follows in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497:

McIntyre J. in Andrews adopted an approach to s. 15(1) which focuses upon three central elements: (1) whether a law imposes differential treatment between the claimant and others; (2) whether an enumerated or analogous ground of discrimination is the basis for the differential treatment; and (3) whether the law in question has a "discriminatory" purpose or effect. In these reasons, for the sake of convenience, I will refer only to discriminatory laws, and not to the various other forms of potentially discriminatory state action. The first element – differential treatment -- relates to, but is not determinative of, the issue of equality for the purpose of s. 15(1). The second and third elements in McIntyre J.'s approach determine whether the differential treatment in question constitutes discrimination within the meaning of s. 15(1) of the Charter. In his detailed discussion of these three elements, McIntyre J. made clear that the analysis of each element is to be undertaken in a purposive and contextualized manner, taking into account the "large remedial component" (p. 171) of s. 15(1), and the purpose of the provision in fighting the evil of discrimination.

[...]

It is impossible to evaluate a s. 15(1) claim without identifying specific personal characteristics or circumstances of the individual or group bringing the claim, and comparing the treatment of that person or group to the treatment accorded to a relevant comparator. This comparison determines whether the s. 15(1) claimant may be said to experience differential treatment, which is the first step in determining whether there is discriminatory inequality for the purpose of s. 15(1).

[...]

Moving on to discuss the requirement that a s. 15(1) claimant show that differential treatment is discriminatory in order to establish a Charter violation, McIntyre J. defined "discrimination" in the following terms, at pp. 174-75:

. . . discrimination may be described as a distinction whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

[...]

As he stated, at pp. 180-81, "[t]he words 'without discrimination' require more than a mere finding of distinction between the treatment of groups or individuals". Moreover, "in assessing whether a complainant's rights have been infringed under s. 15(1), it is not enough to focus only on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground" (p. 182). Rather, "a role must be assigned to s. 15(1) which goes beyond the mere recognition of a legal distinction" on such a ground. The protection of equality rights is concerned with distinctions which are truly discriminatory. A discriminatory burden or denial of a benefit, McIntyre J. stated, is to be understood in a substantive sense and in the context of the historical development of Canadian anti-discrimination law, notably the human rights codes: "The words 'without discrimination' . . . are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage" (pp. 180-81).

[...]

Finally, regarding the role of the various grounds of discrimination expressly listed in s. 15(1), McIntyre J. stated, at p. 175, that they "reflect the most common and probably the most socially destructive and historically practised bases of discrimination", but noted that a s. 15(1) claim may also be brought on an analogous ground, in accordance with the provision's wording and with a proper interpretation of its remedial purpose. In her majority reasons elaborating on the specific issue of analogous grounds, Wilson J. explained, at p. 152, that a ground may qualify as analogous to those listed in s. 15(1) if persons characterized by the trait in question are, among other things, "lacking in political power", "vulnerable to having their interests overlooked and their rights to equal concern and respect violated", and "vulnerab[le] to becoming a disadvantaged group" on the basis of the trait.

Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra, and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

[62]            In my opinion, the plaintiffs fail to demonstrate that they are (1) treated differently and (2) treated differently on the basis of the enumerated and analogous grounds.

[63]            Consequently, this argument must fail.

2. Is the visual inspection policy in place at the Institution contrary to sections 3, 4, 5, 69, 71, 76 and 91 of the Corrections and Conditional Release Act?

[64]            The Correctional and Conditional Release Act reads:

[65]            The visual count policy cannot be said to be made in violation of the Corrections and Release Act. Subsection 71(1) of the Corrections and Release Act, states that an inmate is entitled to have reasonable contact, 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.

[66]            The visual count policy does not infringe the inmate's right to have reasonable contact with family, friends and other persons from outside the penitentiary. The inmate still have reasonable contact with his family even if they have to submit to a visual count four times a day. Furthermore, the visiting count policy is a reasonable limit prescribed for protecting the security of the penitentiary or the safety of persons. In fact the count policy reflects the principle stated in subsection 4(d) that the service uses the least restrictive measures consistent with the protection of the public, staff members and offenders.

[67]          The visual count policy is the least restrictive measure which afford protection to the public, staff members and offenders in the penitentiary. The plaintiffs are only required to meet the Institution staff at the door of the family visiting unit, thus the privacy is infringed as little as possible.

[68]            As for section 69 of the Correctional and Conditional Release Act, I cannot find that the visual policy constitute a cruel, inhumane or degrading treatment or punishment of the offender, Derik Lord.

[69]          Consequently, I find that the visual count policy in place at the Institution during the plaintiffs family visit did not infringe the Correctional and Conditional Release Act. The plaintiffs' argument on this issue fails as well.

3. Is the visual inspection policy in place at the Institution contrary to sections 2, 3, 4 and 66 of the Canadian Human Rights Act?

[70]            The Canadian Human Rights Act reads:

[71]            I am not convinced that an allegation of discrimination under the Canadian Human Rights Act should be considered by this Court, since the Canadian Human Rights Act provides a procedure for such a complaint to be brought before the Canadian Human Rights Commission.

[72]            In any event, under the Canadian Human Rights Act, the plaintiffs have to demonstrate that they suffered discrimination. As was held in the analysis under s. 15 of the Charter, supra, the plaintiffs failed to demonstrate that they suffered discrimination because of the policy.

4. Did the defendant breach its duty to act fairly in failing to inform visitors, prior to their visit, of the rules and regulations that are to be followed during the Private Family Visit at the Institution on May 28, 1997?

[73]            The Commissioner's Directive No. 770 states at section 35:

[74]            Regarding what steps the defendant had to take in order to inform the visitors of the rules and regulations prior to commencing visits will depend. In R. v. Christie, [1991] B.C.J. No. 3876 (S.C.) Gow, J. held:

The accused did not give evidence in the voir dire, so I do not know whether she ever read the Notice and ever looked at the Visitors Guide by picking up a pamphlet, and taking the time to study its contents, but I find that both were visible, and the pamphlets were readily available and I hold that a citizen who will visit a goal for the purpose of visiting an inmate has a duty to inform himself or herself of any literature which is there made available concerning the rules applicable to visitors and visits. If such a citizen chooses not to read the Notice and not to take advantage of the offer of pamphlets, nevertheless, for the purposes of deciding the scope of that visitor's reasonable expectation of privacy, I hold that the citizen is taken to have done so and to have the information contained in the Notice and the pamphlet imputed to him or her.

[75]            Thus, it might be said that by putting a notice and making pamphlets available to the plaintiffs regarding the count policy the defendant discharged its duty to inform. However, in light of the Commissioner's Directive, it seems that the duty on the defendant is more onerous than that since it states that the visitors shall be advised of the rules and regulations with respect to visiting inmates prior to commencing visits. Thus, the duty might require the defendant to make pamphlets available prior to the visits and ensure that the notice regarding the count policy can be acknowledged before the commencement of the visit.

[76]            A notice concerning the visual inspection policy in each private family visiting unit is sufficient to ensure that the rules are communicated to the visitors prior to the commencement of their visit. The policies governing the private family visits were also explained to the plaintiffs during the community assessment; therefore, the duty to inform, in my view, has been discharged.

5. Was David Lord subjected to cruel and unusual treatment or punishment under section 12 of the Charter when he was forced to get up in the morning and go outside to be counted since he was working a steady night shift, he was accustomed to sleeping to about 11:00 a.m. every day?

[77]            The previous legal analysis relating to section 12 of the Charter that I made when I answered the first issue in the case at bar, also applies to this question. Having to rise earlier than usual when participating in a private family visit cannot amount to a cruel and unusual treatment or punishment under section 12 of the Charter. As stated earlier, it cannot be found to be a grossly disproportionate punishment or treatment in regard of the society's standards.

Relating to the termination of the private family visit

6. Did the Correctional Service of Canada have a duty to give a fair hearing to the plaintiffs before terminating the private family visit at Kent Institution on May 28, 1997?

[78]            Sections 91 and 92 of the Corrections and Conditional Release Regulations state:

[79]             Sections 17, 18 and 19 of the Commissioner's Directive No. 770 is a duplicate of the above regulations. It states:

[80]            Sections 17 to 19 of the Commissioner's Directive No. 770

apply to visits in general. However, I believe that they apply in the present case.

[81]            Sections 29 and 30 of the Commissioner's Directive No. 770 indicate:

[82]            Section 91 of the Corrections and Release Regulations gives the power to the institutional head or staff member to suspend a visit to an inmate where he believes on reasonable grounds that, during the course of the visit, the visitor would jeopardize the security of the penitentiary or the safety of any person.

[83]            It does not require a hearing before deciding the suspension of the visit. What it requires is that the institutional head promptly inform the inmate and the visitor of the reasons for the refusal or suspension and give the inmate and the visitor an opportunity to make representations with respect thereto.

[84]            Subsection 18b) of the Commissioner's Directive adds to this duty by requiring that the institutional head inform the inmate and the visitor promptly, in writing, of the reasons for the refusal or suspension and shall give the inmate and the visitor an opportunity to make representations with respect thereto. The title of the person to whom they should address their representations should be indicated.

[85]            These requirements were respected by the defendant. However, the question is whether the natural justice requires the defendant to proceed to a hearing before suspending the visit. In my opinion, the defendant did not have to give a hearing before suspending a visit.

[86]            In Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, the Director segregated the appellants after their alleged participation in an hostage-taking incident. The Director did not make an independent inquiry but relied on what he had heard from the warden of Matsqui Institution and personnel at region headquarters. The Segregation Review Board, which reviewed the appellant's segregation monthly in accordance with section 40 of the Regulations, recommended that they be released from administrative segregation into the general prison population. The appellants appeared before the Board. The Director refused to follow the Board's recommendation on the ground that the appellants' release from segregation before the disposition of the criminal charges pending against them would "probably" or "possibly" introduce an unsettling element into the prison population. The Director did not inform the appellants of his reasons for refusing to follow the Board's recommendation and did not give them an opportunity to be heard as to whether he should act in accordance with the recommendation. The Supreme Court stated at paragraph 15:

The question, of course, is what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context and what should be considered to be a breach of fairness in particular circumstances. The caution with which this question must be approached in the context of prison administration was emphasized by this Court in Martineau (No. 2), supra. Pigeon J., with whom Martland, Ritchie, Beetz, Estey and Pratte JJ. concurred, said at p. 637:

I must, however, stress that the Order issued by Mahoney J. deals only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in Attorney General of Quebec v. Cohen ([1979] 2 S.C.R. 305">[1979] 2 S.C.R. 305). It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.

Dickson J. (as he then was), with whom Laskin C.J. and McIntyre J. concurred, expressed a similar caution at p. 630 as follows:

It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the [page 655] duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.

The same caution was emphasized by the Court of Appeal in R. v. Hull Prison Board of Visitors, ex parte St Germain, [1979] 1 All E.R. 701, which was referred to by Pigeon and Dickson JJ. in Martineau (No. 2), supra, and in which Megaw L.J. said at p. 713 concerning the judicial review of prison disciplinary decisions:

It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly, having regard to all relevant circumstances, and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which was capable of remedy.

Although McEachern C.J.S.C. severely criticized the imposition of administrative segregation by oral instructions that are not followed as soon as possible by written notice with reasons for the decision, he held, as I have indicated, that the original imposition of administrative segregation in this case was a lawful exercise of the Director's discretionary authority under s. 40(1) of Penitentiary Service Regulations, and that it was not carried out unfairly. That conclusion was not seriously challenged on the appeal, and, indeed, it would not appear to be open to challenge. Because of the apparently urgent or emergency nature of the decision to impose segregation in the particular circumstances of the case, there could be no requirement of prior notice and an opportunity to be heard before the decision.

[Emphasis added]

[87]            Thus, it seems that there is no requirement to give prior notice and an opportunity to be heard before the decision is made if the decision is apparently urgent in nature. In the case at bar, I believe that procedural fairness does not require a hearing before a decision to suspend a visit is made. The decision to suspend a visit is made on reasonable ground that an inmate or a visitor would jeopardize the security of the penitentiary or the safety of an individual. Consequently, I cannot see that the duty to act fairly imposes that the defendant gives a hearing before deciding to suspend visits when it is the security of everyone in the penitentiary that is involved. In my opinion, the fact that the David Lord refused to be counted was a reasonable ground for the decision to suspend the visit. It is also sufficient to attest of the apparent urgent or emergency nature of the decision.

[88]            I believe that the requirement provided by the Corrections and Conditional Release Regulations that the defendant gives the plaintiffs an opportunity to be heard shortly after the decision to suspend the visit is made, is sufficient and respects the procedural fairness.

[89]            In Cardinal, supra, the Supreme Court stated:                         

The issue then is what did procedural fairness require of the Director in exercising his authority, pursuant to s. 40 of the Penitentiary Service Regulations, to continue the administrative dissociation or segregation of the appellants, despite the recommendation of the Board, if he was satisfied that it was necessary or desirable for the maintenance of good order and discipline in the institution. I agree with McEachern C.J.S.C. and Anderson J.A. that because of the serious effect of the Director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. With great respect, I do not think it is an answer to the requirement of notice and hearing by the Director, as suggested by Macdonald J.A., that the appellants knew as a result of their appearance before the Segregation Review Board why they had been placed in segregation. They were entitled to know why the Director did not intend to act in accordance with the recommendation of the Board and to have an opportunity before him to state their case for release into the general population of the institution. I do not think the Director was required to make an independent inquiry into the alleged involvement of the appellants in the hostage-taking incident. He could rely on the information he had received concerning the incident from the warden of Matsqui Institution and the personnel at regional headquarters. At the same time, he had a duty to hear and consider what the appellants had to say concerning their alleged involvement in the incident, as well as anything else that could be relevant to the question whether their release from segregation might introduce an unsettling element into the general inmate population and thus have an adverse effect on the maintenance of good order and discipline in the institution.

These were in my opinion the minimal or essential requirements of procedural fairness in the circumstances, and they are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the Director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security.

[Emphasis added]

[90]            I believe that in the case at bar, procedural fairness was respected and did not require more measures than were taken by the defendant. In the case at bar, the plaintiffs were explained the reasons why the visit was terminated and they were also given the opportunity to make representations on the subject. Therefore, this argument fails.

7. Did the Institution charge, try, convict and sentence Vera Lord of assault without giving her the opportunity to refute the allegations made against her?

[91]            The plaintiffs allege that Vera Lord was not given the opportunity to refute the allegations of assault made against her. The defendant relied on the fact that Vera Lord assaulted an officer and struck a video camera with a coat hanger during the family visit of May 28, 1997, in order to refuse to reinstate her private family visit privilege.

[92]            I find that Vera Lord was given the opportunity to state her case regarding her visiting privilege, before the Visits Review Board on June 11, 1997. However, the question is whether the notice she received was sufficient to inform her of the nature of the allegations against her and on which the Visits Review Board was going to rely upon in its review of the decision suspending her visiting privilege.

[93]            However, the Board's decision could have been contested by way of judicial review and it is not my responsibility to decide the issue in this action.

8. Were David Lord and Coralee Lord's rights under the Charter violated by the continued suspension of visits?

[94]            Pursuant to section 91 of the Corrections and Conditional Release Regulations and sections 17 to 19 of the Commissioner's Directive No. 770, the Institutional Head was entitled to suspend David Lord and Coralee Lord's visiting rights if the visitor would jeopardize the security of the penitentiary or the safety of any person. Pursuant to sections 29 and 30 of the Commissioner's Directive No. 770, the Institution Head can refuse to permit a private family visit for any exceptional circumstance.

[95]            On this issue, I find that it was reasonable to suspend David Lord and Coralee Lord's visits rights because they were under criminal charges before the Court on grounds relating to the events of May 28, 1997 and with the events that had occurred it was reasonable to believe that they would jeopardize the security of the penitentiary or the safety of any person.

9. Was the manner in which the plaintiffs were made to leave, without being permitted to pack their belongings, done with unnecessary force and roughness?

[96]            Officers are entitled to use reasonable force, when necessary. For example, they cannot instigate the "violence" but they are entitled to respond to "violence" from an individual. The criterion is whether the force used was reasonable in the circumstances.

[97]            The Court has heard nine witnesses including the six plaintiffs and three representatives of the defendant.

[98]            The Court has also had the benefit of two videotapes which were taped on May 28, 1997.

[99]            The events that happened on May 27 and 28, 1997, are the basis of this claim. The Court will not insist on the facts on which the parties agree. I will rather examine the particular elements on which the parties disagree.     

[100]        In light of the evidence, it is clear that the six members of the Lord's family all learned that there was a new counting procedure in place when they arrived at the house for the private family visit on May 27, 1997. This visual count procedure, stated in Kent Standing Order No. 565, had only been in place for a few weeks, since it was adopted on March 10, 1997. Therefore, on May 27, 1997 this procedure was in place and obviously, all the plaintiffs were quite upset by this new counting procedure.

[101]        Nevertheless, everybody but David Lord agreed to be counted. Derik Lord was counted four times a day as well, but under the counting procedure for the inmate population held at different times than the visitors' counting procedure. The five other members of the family also had to be counted but pursuant to the new counting procedure for visitors.

[102]        The evidence shows that on May 27, 1997 at 3:00 p.m. the guards proceeded with the visual inspection. During that visual count, David Lord voiced his objections regarding the counting procedure.

[103]        The first disagreement between the parties regarding the events on May 27, 1997, is that David Lord pretended that he had an agreement with the Correctional Services supervisors that the counting procedure was suspended until the next day where he was going to have a meeting at 2:30 p.m. with the warden to discuss the application of the counting procedure.

[104]        This agreement was denied by the witnesses from the defendant. The existence of the agreement is also disproved by the events that took place on the next morning, May 28, 1997, when the Correctional Services officer asked the plaintiffs to be counted. Once again, on May 28, 1997, everybody complied with the counting procedure except David Lord who, even though he got up around 9:00 a.m., was quite upset and insisted to the Correctional Services officers that he had an agreement with the supervisors the day before that the visual count would be suspended until his meeting with the warden, in the afternoon.

[105]        Again, the Correctional Services officers' reactions were clear: they did not accept that there was an agreement reached which suspended the visual counting procedure. They advised David Lord that he would have to comply with the next visual count to be held around noon.

[106]        The fact that David Lord was advised that he had to comply with the visual count to be held around noon is confirmed with the fact that when David Lord went to the gate to get his medication, he made a phone call to the local RCMP office asking an officer to be present at noon because he suspected that he could face some trouble.

[107]        In my view, David Lord failed to convince the Court that an agreement with the Correctional Services officers was reached in the afternoon of May 27, 1997, to suspend the visual count procedure for the visitors until the meeting that was supposed to be held on May 28 at 2:30 p.m. with the warden.

[108]        In my view, the provocative attitude of David Lord not to play by the rules on May 27 and May 28, 1997, constitutes the major element at the basis of the incident that happened in the afternoon on May 28, 1997.

[109]        The rules were in place; those rules were known by the visitors that had accepted to participate to the private family visit and it was a reasonable expectation that the visitors should comply with those rules.

[110]        In fact, only David Lord decided, on his own, not to play by those rules and to challenge those rules. He also decided to argue with the Correctional Services officers about law principles based on the Charter.

[111]        Obviously, the Correctional Services officers on duty on May 27 and 28, 1997 did not have the possibility nor the rights not to comply with the rules that were in place. If a visitor decided not to comply with those rules, he always had the possibility to leave the Institution. If anybody wants to challenge those rules, he has to do it through the right channel, which is obviously not the way it was done by David Lord.

[112]        Obviously, it would have been much easier for everybody if David Lord had decided to comply with the rules until the meeting with the warden and then, if he could not arrive to an agreement which satisfied him, he could have left the Institution without creating any trouble. It would be total chaos if any Correctional Services officer had the right to suspend any rules applicable in the Institution when a visitor challenges that rule on the basis that his fundamental rights are infringed by the regulations in place.

[113]        One should remember that institutions like Kent Institution are responsible for a hundred inmates and have duties and responsibilities regarding the well being of those people and cannot change those rules because a visitor is challenging them.

[114]        Maybe one could say that to terminate the visit for the five visitors could be exaggerated in the circumstances, maybe the warden has shown an excess of prudence in the way the decision was made, but, as was held earlier in these reasons, she had the right to suspend the private family visit on May 28, 1997, given the circumstances.

[115]        Regarding the manner the termination of the visit was made by the Correctional Services officers, the evidence that was presented to the Court raised a lot of concerns.

[116]        The situation culminated when two Correctional Services officers went to the unit around twelve and wanted to count the visitors. I have received contradictory evidence but it is clear that David Lord did not want to be counted and decided not to show up as he precisely mentioned before, during his testimony and also when he called the local RCMP office and told an RCMP officer that he could face problems around noon. How could David Lord say that he could face a problem and asked the RCMP to be there around noon, if his intention was to be counted?

[117]        So, I have no hesitation to conclude that David Lord had no intention to be counted and decided not to show up to be counted around noon.

[118]        After that, the two Correctional Services officers went back to their office and reported to the warden.

[119]        The Correctional Services officers who testified before the Court explained that, first, a decision was made to terminate the visit; so, the next step was to take care of the inmate. They sent two Correctional Services officers who went to the family unit and asked Derik Lord to follow them to the chapel where he was informed that the visit was terminated.

[120]        After the inmate was secured in the chapel, two Correctional Services officers went back to the family unit and informed David Lord, who was on the veranda, that the visit was terminated. They very politely asked him to follow them, many times. David Lord insisted that he did not want to follow them and that the visit should not be terminated before he met with the warden.

[121]        In my view, David Lord decided deliberately not to follow the rules he knew, and also decided deliberately to create that incident. After a few minutes of discussion, which is seen on the videotapes, the two Correctional Services officers escorted David Lord to a RCMP car, where he was arrested and moved out of the Institution.

[122]        Subsequently, David Lord was convicted of trespass and this decision was sustained by the Court of the Queen's Bench of British Columbia.

[123]        Until that very moment, the four other members of the family, all women, which were still in the private family visiting unit, were not involved in the argument nor were they asked to leave the premises or told that their visit was terminated.

[124]        Once, David Lord and Derek Lord were escorted outside the unit, a large number of Correctional Services officers literally invaded the family unit. The number is not precise, but around twelve men and women entered the building and advised the four other members of the family that the visit was terminated and they had to leave.

[125]        The Correctional Services asked two officers to videotape what happened to make sure that everything would be recorded.

[126]        Before we start to assess what happened, it is important to remind us that those four women were four quiet visitors who had not demonstrated any aggressive attitude towards anybody.

[127]        It is also clear that, even though they were within the perimeter of a penitentiary, they were not inmates and they had the right to leave anytime, so far as they followed the security procedures.

Vera Lord

[128]        I have carefully reviewed the videotape recording the events relating to Vera Lord, who is Derik Lord's grandmother and I have also reviewed what was qualified by the Correctional Services officers as an assault by Vera Lord toward Correctional Services officers that were present.

[129]        In my view, those suggestions are frivolous and I find that it was a foreseeable reaction for Vera Lord to react as she did, given that she was surrounded and confronted with many men in her room when she was only trying to gather her personal belongings before leaving the Institution.

[130]        The reaction of the Correctional Services officers constitutes an overreaction to the situation and it was not at all necessary to videotape Vera Lord when she was gathering her belongings, hearing her granddaughter crying and yelling outside and when she did not even know why the visit was terminated for them.

[131]        It should be remembered that the visit was supposed to last until May 30, 1997. However, the officers allowed Vera Lord about two minutes to gather her personal belongings and leave the premises.

[132]        In my view, the overreaction of the Correctional Services officers toward Vera Lord was totally unacceptable in the circumstances and totally inadequate for a woman of seventy-four years old that had until that very moment a totally blameless attitude.

[133]        Vera Lord should be entitled to an amount of $2,000 in damages.

Coralee Lord

[134]        Concerning Coralee Lord, the situation is a little bit more complex.

[135]        Coralee Lord is the daughter of David Lord and the sister of Derik Lord. She was also asked, on the afternoon of May 28, 1997, to leave the family unit because the visit was terminated.

[136]        Coralee Lord testified that she wanted to know what was going on, and particularly, where her father was.

[137]        When David Lord was arrested and escorted to the RCMP car, he clearly yelled that he was arrested when he was on the veranda, loud enough to make sure that everybody in the family unit would hear that.

[138]        I have no doubt that Coralee Lord was aware at the time, as were the other members of the family in the family unit, that her father had been arrested.

[139]        I have not seen any evidence to demonstrate whether anybody could see David Lord escorted to the RCMP car and the car leaving the place, so, I cannot comment on that.

[140]        Nevertheless, Coralee Lord knew that she had to leave and she effectively left the unit. Nevertheless, after walking for a while in the direction of the gate, she told the Correctional Services officers many times that she wanted to be with her father. That was inconsistent with her knowledge that her father had been arrested and had been escorted outside the Institution.

[141]        The Correctional Services officers decided not to tell her what had happened to her father but only that she had to leave because the visit was terminated without giving any other reasons, even though Coralee Lord had asked for explanations which were never given to her.

[142]        On her way to the gate, she decided to stop, turnaround and walk towards the family unit. The Correctional Services officers decided, at that time, to get her by the arms in order to prevent her to return to the family unit. A scuffle ensued where as many as five or six literally carried Coralee Lord over to the gatehouse, while Coralee Lord resisted her carrying over. During the scuffle, she lost one of her shoes which hit a Correctional Services officer, a woman not identified. This Correctional Services officer decided to hit Coralee Lord with her leg although it is clear from the videotape that Coralee Lord's actions were not intended to hit the Correctional Services officer but were a reaction to being held above the ground by six officers.

[143]        Coralee Lord was then handcuffed, her hands behind her back, and made to walk to the gatehouse with only one shoe even though she very politely asked, many times, the Correctional Services officers to have her shoe put back on. She was told that she was not going to have her shoe put back on because she had hit a Correctional Services officer with it.

[144]        Once at the gatehouse, she was told to sit down on a chair. Coralee Lord refused. She was then trapped by the neck by a Correctional Services officer in order to immobilize her and force her to sit on the chair since she was resisting the order to sit on the chair. They then shackled her ankles, after she tried to hit an officer who was beside her.

[145]        The use of force could be seen as justified in the circumstances, even though the general attitude of the Correctional Services officers could be seen as an overreaction toward those visitors who had committed no offence and had only to be escorted outside the premises of the Institution.

[146]        It is understandable that Correctional Services officers could use some force in order to prevent an inmate from escaping, but in this case, we are facing visitors who were advised to leave the premises and the Correctional Services officers had only to escort those people outside. Handcuffs in the back and shackles around the ankles were exaggerated, in the circumstances.

[147]        This exaggeration is further emphasized by the fact that the Correctional Services officer that dealt with the three other women was successful in bringing them to leave the unit peacefully without having to resort to handcuffs and shackles while the two Correctional Services officers who dealt with Coralee Lord employed confrontational tactics that only contributed to the escalation of the events that took place.   

[148]        I must admit that I was not pleased with the fact that the Correctional Services officer who dealt with the three other women almost had to beg the other officers at the family unit to let her deal with the three women and use a conciliatory approach to bring them to leave the premises peacefully. I commend her for the way she dealt with the situation. She was one of the rare Correctional Services officers who kept her common sense and did not overreact.

[149]        The Correctional Services decided to lay charges against Coralee Lord for aggression. Those charges were later abandoned. She was finally convicted of trespass, like her father.

[150]        Even though, I consider that she contributed to her problem, Coralee Lord, is a respected nurse and had no intention whatsoever to create any problem and was only trapped in the situation where she did not know what was going on and was totally stressed by an hostile environment to which she was not accustomed.

[151]        The Correctional Services officer who hit Coralee Lord sent a wrong message to anyone who looked at the videotape filming what had happened that afternoon. I think that we should respond to that wrong message and Coralee Lord is entitled to $1,000 in damages.

Dawn Lord

[152]        Dawn Lord is the youngest daughter of David Lord and also the sister of Derik Lord.

[153]        She testified quietly about what happened and my understanding is that she gathered everybody's belongings, particularly her father's and mother's belongings before leaving the family unit. She almost washed the dishes before leaving. She did nothing wrong and, in my view, was not involved in any problem with the Correctional Services agents on the Institution premises.

[154]        She probably suffers more than some others from those events, given her young age. She is also the one who is less complaining.

[155]        For the emotional damages and humiliation suffered on this occasion, she is entitled to $2,000.

Elouise Lord

[156]        Elouise Lord is David Lord's spouse and the mother of Coralee, Derik and Dawn Lord.

[157]        She testified and she quietly explained the context and the reasons why the Lord family was before the Court.

[158]        Obviously, Elouise Lord suffered great humiliation from what happened on that very day of May 28, 1997.

[159]        Nevertheless, one should understand that Elouise Lord should not be totally surprised of what happened. She knows her husband and she knows his concerns about the application of rules in the penitentiary and also the problems suffered by her husband in previous occasions in his relationship with the Correctional Services officers.

[160]        So, my understanding is that she was totally aware that her husband was participating in the escalation of the events of May 27 and 28, 1997.

[161]        She knew the rules regarding the visitors counting procedure and she knew that her husband had no intention whatsoever to comply with those rules.

[162]        She witnessed what happened and I have seen no evidence that she did anything to cool down the situation before the succession of events of May 28, 1997.

[163]        My understanding is that she was in the washroom when her husband was arrested and that she was very upset when she realized that the family visit was terminated.

[164]        I also understand that she believes in the process of the private family visit concept and also that she really wants to help her son to be rehabilitated.

[165]        Nevertheless, on one hand, she knows that her husband is very militant in his intention to challenge the Correctional Services rules, and on the other hand, she is enthusiastic about the necessity to maintain the private family visits and help her son Derik.

[166]        It is my understanding also that the Correctional Services authorities are fully aware of that because her private family visit status was reinstalled days after those events, because the authorities knew very well that Elouise Lord had a very beneficial effect on her son and on the family altogether. In my view, she had no choice but to stand by her husband and her family and I understand that.

[167]        She was escorted outside, on the afternoon of May 28, 1997, and felt humiliated by the termination of the visit, without any valid reason, as she testified. She was also escorted to the hospital by ambulance, because she felt ill.

[168]        In my view, her attitude toward the Correctional Services officers during that afternoon was understandable, given the circumstances, and the way the Correctional Services officers have dealt with her that very afternoon, justifies that Elouise Lord should be entitled to an amount of $500.

David Lord

[169]        I have no sympathy for the way David Lord dealt with the situation on May 27 and 28, 1997. David Lord knew exactly what was going to happen. It was not the first time he was facing controversy with the Correctional Services authorities.

[170]        He deliberately decided to escalate this question, challenging the rules the wrong way.

[171]        There is one way to challenge a law or a rule, it is through the appropriate legal proceedings. You cannot decide unilaterally not to follow the rules by invoking the Charter to Correctional Services officers, and he knows that.

[172]        When he called the RCMP officer in the morning of May 28, 1997, he knew perfectly well that he was going to be trapped in a controversy around noon that day, which exactly happened, so it was no surprise to him. But, at the same time, it was a difficult situation for the members of his family that were not accustomed to that kind of controversy.

[173]        In my view, David Lord is partially responsible for the emotional damages suffered by the other members of the family. The way he dealt with the situation created instability and confusion all around him.

[174]        He could have been like a fish in water in controversy, but it was obviously not the case for the other members of the family.

[175]        David Lord should have thought about what was going to happen to other members of his family when he was escorted outside the Institution premises.

[176]        When you are a father, when you are a leader, when you are such an important member of the family, you have rights obviously, but you also have responsibilities and duties, particularly for your two daughters, your mother, your wife and your son, when all these people could suffer from your doing.

[177]        David Lord decided not to think about that and to forget his duties and responsibilities toward the members of his family, which were to stay around to comfort and protect the members of his family and not to bring down a series of events that caused anguished to the members of his family.

[178]        David Lord just set aside those duties and responsibilities and had only one thing in mind, i.e. what he believed to be the respect of his rights under the Charter.          

[179]        Even though David Lord was not yet allowed to participate in the private family visit system, he made it very clear that he will never comply with the rules regarding the visitor counting procedure. So, he is responsible

for his damages and will not be compensated for that.

[180]        For these reasons, David Lord's claim is rejected.

Derik Lord

[181]        Derik Lord is an inmate. In 1997, he was in jail since more than eight years.

[182]        He was also aware of the rules in the institution and the means you have to challenge those rules or the decisions made, pursuant to those rules.

[183]        In my view, Derik Lord lost a lot in the circumstances of May 27 and 28, 1997. He was an inmate and, at the end of the private family visit, was not leaving the Institution. He just left the private family unit to go back to his cell.

[184]        It is obvious that the private family visit is a plus for the inmates and given the particular context, it has to be done with the swiftest way possible, given the Correctional Services rules applicable.

[185]        Even though the rights of the inmates and the rights of the visitors are not the same, they share the same environment and the visitors have to make some concessions to their freedom for obvious reasons.

[186]        Derik Lord has shown good faith when he offered to the Correctional Services officers the possibility that his father could leave and that the visit could continue. This demonstrates that he was fully aware that his father's attitude was creating a problem that could not be resolved in a context of a three day private family visit.

[187]        He made that request to the Correctional Services authorities and that request was rejected and the family visit was terminated.

[188]        Derik Lord knew the rules, he played by the rules and also suffered the consequences of what happened during those days.

[189]        Nevertheless, Derik Lord failed to convince the Court that he could be entitled to any damages.

CONCLUSION

[190]        My responsibility lies in whether the application of rules may lead to an abuse by one party or another, and in consequence of that, if there are damages created to other parties.

[191]        If there is a link between the damages and the wrong doing, the wrong doer could be liable in paying for it.

[192]        In my view, the defendant is liable in part for what happened during those days and, in conclusion, the plaintiffs are entitled to the damages established as follows:

Vera Lord                    2,000$

Coralee Lord     1,000$

Dawn Lord                   2,000$

Elouise Lord                  500$

[193]        The plaintiffs failed to present any evidence about other damages.

[194]        The defendant is entitled to costs in respect of David Lord.

[195]        The plaintiffs, Vera Lord, Coralee Lord, Dawn Lord and Elouise Lord, as self litigants are not entitled, in respect of the defendant, to counsel fees, however they are entitled to disbursements such as, for example, photocopy charges, travel expenses, witness fees, miscellaneous items such as transcript, postage and long distance telephone calls.

Pierre Blais                                                                                                        Judge

OTTAWA, ONTARIO

April 26, 2001