William Head Institution v. Canada (Commissioner of Corrections), docket T-1945-97

Date: 990310

Docket: T-1945-97

BETWEEN:

Enter Style of Cause just after [Comment] code

-

GORDON ALCORN, of William Head Institution,

DARRELL BATES, of Kent Institution,

DANNY BOLAN, of Elbow Lake institution,

JON BROWN, of Matsqui Institution,

SHAWN BUTTLE, of Regional Health Centre,

GARY FITZGERALD, of Ferndale Institution,

ANGUS MacKENZIE, of Mountain Institution, and

FABIAN PICCO, of Mission Institution,

Applicants,

- and -

THE COMMISSIONER OF CORRECTIONS and

THE DEPUTY COMMISSIONER OF CORRECTIONS,

PACIFIC REGION, CORRECTIONAL SERVICE OF CANADA,

Respondents,

REASONS FOR ORDER

RICHARD A.C.J.:

NATURE OF THE PROCEEDINGS

[1]          The applicants are inmates, one from each of the eight penitentiaries in British Columbia, the Pacific Region of the Correctional Service of Canada.

[2]          On September 4, 1997, the applicants filed an originating notice of motion for an application for judicial review, to obtain a writ of certiorari or relief in nature thereof to quash the decision of the respondents to proceed with the implementation of the Millennium Telephone system in the Pacific Region of the Correctional Service of Canada and, if required, an order pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms.

[3]          The application is based on the following grounds:

1.      By implementing the Millennium Telephone System, the respondents will act in excess of or without jurisdiction by discriminating against those of the applicants who do not have the money to pay for the additional costs of the new system because they are from a lower social economic background, contrary to section 15 of the Canadian Charter of Rights and Freedoms;

2.      By implementing the Millennium Telephone System, the respondents will discriminate against the applicants as prisoners, contrary to section 15 of the Canadian Charter of Rights and Freedoms;

3.      By implementing the Millennium Telephone System, the respondents will violate the applicants' rights to retain and instruct counsel without delay, contrary to subsection 10(b) of the Canadian Charter of Rights and Freedoms;

4.      By implementing the Millennium Telephone System, the respondents will act in excess of or without jurisdiction by impeding the applicants' ability to make plans for release, thereby causing them to spend a longer time in custody without due process, contrary to the common law duty to act fairly, the principles of natural justice, and sections 7 and 9 of the Canadian Charter of Rights and Freedoms;

5.      In failing to provide the inmates of the Pacific Region with an opportunity to contribute to this decision to implement the Millennium Telephone System, the respondents failed to adhere to the requirements of section 74 of the Corrections and Conditional Release Act (CCRA) and therefore erred in law;

6.      By implementing the Millennium Telephone System, the respondents will deny the applicants reasonable contact with family, friend and other persons from outside the penitentiary, subject only to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons, contrary to subsections 71(1) and 96(z.11) of the CCRA, and therefore erred in law;

     7.      By implementing the Millennium Telephone System, the respondents will not use the least restrictive measures, nor will they allow the applicants to retain the rights and privileges of all members of society, except those that are necessarily removed or restricted as a consequence of their sentences, contrary to paragraphs 4(d) and (e) of the CCRA, and therefore erred in law;

8.      By implementing the Millennium Telephone System, the respondents will prevent the applicants from communicating with members of the public by telephone for reasons other than those authorised by section 95 of the Corrections and Conditional Release Regulations (CCRR), and therefore erred in law.

In this matter, unlike the Hunter case1, the applicants are not challenging the implementation of the entire telephone system. The main issue raised before me at the hearing was the fact that the implementation of the Millennium Telephone System in British Columbia resulted in a situation where the inmates would be unable to continue making local calls, either free of charge or at a cost of 25 ¢ per call. Counsel for the applicants conceded that no issue would be raised if the local calls were at a cost of 25 ¢ per call or if the inmates could use a debit card.

On September 4, 1997, the applicants brought a motion for an interlocutory injunction, pursuant to section 18.2 of the Federal Court Act, enjoining the respondent from implementing the Millennium Telephone System until a decision on the application for judicial review was made.

By order dated September 22, 1997, the motion for an interlocutory injunction was dismissed and the Federal Court of Appeal dismissed the appeal on March 27, 1998.

On February 2, 1998, the Court allowed an extension of time, until February16, 1998, for the filing of additional material and affidavits and allowed the applicants to file a supplementary record and granted an adjournment sine die of the hearing.

BACKGROUND

The affidavit of Richard Montminy, who is the Project Manager of Technical and Information Management Services for National Headquarters of CSC, provides the history of telephone access by inmates in Canadian penitentiaries:

a)      Prior to the mid 1970s, inmate access to telephones was permitted only for exceptional reasons and only under the control and supervision of a Correctional Service of Canada (CSC) staff member. This practice became unmanageable.

b)      By 1994 a practice of introducing coinless, collect call pay telephones into institutions had resulted in 80% of all institutions having variations of these phones. (Coinless collect call pay phones were the only practical way to allow inmates in minimum security institutions to use phones because the possession of coins, as currency, is prohibited as contraband in institutions. See CCRA section 2, and CCRR section 42(2)(b))

c)      In the early 1990s deregulation of the phone industry and technological developments allowed the CSC to consider more secure and equitable methods of establishing phone services in institutions.

d)      The CSC examined various services available in the United States and decided to implement a new phone system nationally in Canada in November of 1994. The goal of this system was to enhance both the security of institutions and public safety.

e)      The Commissioner of the CSC, pursuant to section 97 of the CCRA, issued Commissioner's Directive (CD) 085 in April 1996 after the new system became operational in Ontario.

The new telephone system became operational in Ontario in April 1996.

Following the decision rendered by this Court in Hunter the new phone system called the Millennium Telephone System, was implemented over a period of time.

The applicants claim that the decision which gives rise to this application for judicial review was made by the respondent on January 13, 1997 and communicated in a letter on August 15, 1997. On January 6, 1997, the applicants' counsel sent a letter to the respondent regarding the said implementation and had received an answer on January 27, 1997.

In a letter, dated January 6, 1997, the applicants' counsel indicated:

"We have been advised that the new telephone system will be operational in at least one penitentiary in British Columbia by January 24, 1997. My instructions are to file in Federal Court for an order restraining the Correctional Service of Canada from implementing the telephone system, and given the time constraints imposed by the Federal Court Rules I request that you respond to this letter by January 13, 1997. If we have not received a response by that date, we will take that as your decision not to provide prisoners in the Pacific Region with an opportunity to contribute to this decision, and as a further decision to proceed with the implementation of the Millennium Telephone System in the Pacific Region without regard to the Corrections and Conditional Release Act and Regulations."

The respondents state that the telephone system was implemented in the eight above-mentioned penitentiaries at different time as follows:

William Head Institution:      December 8, 1997

Kent Institution:          February 11, 1998

Eldow Lake Institution:      February 16, 1998

Mission Institution:          December 18, 1997

Matsqui Institution:          February 24, 1997

Regional Health Centre:      February 13, 1998

Ferndale Institution:          November 20, 1997

Mountain Institution:          January, 1997

The principals features of the new phone system were also explained by Mr. Richard Montminy in his affidavit:

17.      To meet the objective of enhancing public and institutional security while managing and supervising inmate telephone activity in an equitable and efficient manner the new system has the following features:

a)      inmate are assigned a telephone personal identification number (PIN) which facilitates basic access to the system much like banking, telephone, video rental and other PIN cards used in the community.

b)      inmates identify up to twenty (20) telephone numbers they might wish to call, which becomes their "personal calling list" or "authorized call list". For example, numbers of family, friends, media outlet, etc. could be included on the personal call list. That list is reviewed by each inmates's Case Management Team to ascertain that communications with the proposed recipients would be consistent with the individual's correctional plan, and standard correctional objectives for the safety of persons, security of the penitentiary, and protection of society. The same review process is universally used and accepted for the approval of any and all visits to an institution by inmates' family, friends and others from the community. Attached hereto and marked as Exhibit "D" to this my affidavit is a Visiting Application and Information Form which all inmate does not like a decision with respect to the "authorized call list" then they may make representations or ultimately file a grievance;

c)      a list is prepared by each institution of "common access numbers", including, for example, the Ontario Legal Aid Office, the Correctional Investigator, and the Queen's Law Project in Kingston. The "common access" list is limited technologically to 35 (thirty five) numbers;

d)      Legal counsel may be included on the "personal calling list". It should be noted that administration telephones are also normally provided for inmates' use to privately contact counsel when they so request. It is also noted that there is a regulatory entitlement to counsel without delay in certain circumstances pursuant to section 97 of the CCRR. At the present time, inmates may contact their lawyer using the administrative phones without any prospect of monitoring or interception, subject to judicial authorisation. The new telephone system will allow for calls to a lawyer on the authorized call list to go through without monitoring or interception subject to judicial authorization. The administrative phones will remain open for contacting counsel subject to the same limitations;

e)      modifications can be made to the above lists within 14 days of an inmate's request;

f)      practical access, as limited by time and availability of telephones, may be controlled as needed during peak hours of usage. This is done by establishing a "call length threshold" as needed during peak periods;

g)      until the implementation of the debit card system, calls from inmates will remain as "collect calls" subject to the same local and long distance rates in the community. The telephone set continues to use touch pad dialing for ease of use, and calls to 611, 411, 911, directly dialed calls, calling card, call-me (TM) card, third number billing and some overseas calls continue to be prohibited from institutional pay telephones;

h)      improvements in the telephone service for inmates include better transmission quality, a self-diagnostic feature which automatically reports any out-of-service problems to the telephone company repair department, push button access to service in either language, and practical features of volume control and swivelling handset cords;

i)      the new system can provide computerized means to generate reports which can be reviewed and analyzed by security intelligence specialists within each institution and at regional and national headquarters in order to assist in the prevention and suppression of criminal and other improper inmate activities related to the use of the telephones.

In Hunter, except for the voice over feature, the legality and constitutionality of the new telephone system was upheld.

The rationale for the new telephone system was also explained by Mr. Montminy both in the Hunter case and in these proceedings:

     THE RATIONALE FOR THE NEW PHONE SYSTEM

14.      I have had the opportunity to review observation and incident reports from institutions, investigation reports at the national, regional and institutional levels, and personal reports from CSC staff members during my frequent visits to institutions. They show repeated serious safety, security and administrative concerns arising out of the relatively unfettered inmate access to the telephones such as:

a) communications to have arsenic, nitroglycerin, ammunition, hand-guns, automatic weapons, and other weapons introduced into institutions;

b) communications to arrange violent assaults and breakouts;

c) communications with drug traffickers and other conspirators to introduce drugs into the institutions;

d) communications to threaten and/or harass both previous victim and witnesses;

e) communications which breach court orders that prohibit contact with ex-spouses, victims or witnesses;

f) communications to voice-mail services, pen-pal and others similar activities where subscribers have not been made aware that the telephone calls were originating from inmates in a federal penitentiary;

g) communications to arrange contact killings and others" setting of accounts";

h) communications which the recipient simply does not wants;

i) inmates waiting for telephone access with resultant arguments and incidents over priority and duration of calls;

j) the use of intimidation and extortion tactics on vulnerable inmates who want to use the telephone; and,

k) the use of intimidation and extortion tactics on family and friends to accept collect call.

[...]

     THE PROBLEM OF DRUGS IN CORRECTIONAL INSTITUTIONS

32. One of the objectives of the new phone system is to combat the use of drugs and other banned substances by inmates. This issue has become an increasing concern to the CSC.

33. Many inmates prior to their incarceration were users of illicit substances. Research and experience has shown that their desire for intoxicants remains a significant problem after incarceration. CSC considers that drugs are now a driving force behind the inmate underground economy. This situation exists at all security levels. This activity contributes to the majority of disciplinary and security related issues. Attached hereto and marked as Exhibit "F" to this may affidavit is a copy of the, " Drug Strategy of the Correctional Service of Canada" dated January, 1995.

34. Drug consumption in a correctional environment has potentially a greater impact on general behavior (sic) than in the community. A significant portion the inmate population manifest serious deficits with respect to anger control. In addition, many offenders have demonstrated a high potential for violence. These two factors when coupled with the tensions created by the inmate code ans a desire to consume drugs is frequently linked to violence. This violence is not confined exclusively to the institutions.

35. Some examples of drug related activity are as follows:

i) Visitors can be physically threatened/assaulted for the following reasons:

             to bring drugs into an institution;

             to provide funds to buy drugs; or,

             to pay off drug debts on the outside.         

     ii) inmate gangs will fight to control the market;

iii) inmate gangs will attempt to force/blackmail visitors or staff into bringing drugs into the institution;

iv) inmate dealers will threaten/assault:

         inmate users for non-payment; or

         family and friends of inmate users.

v) aggressive inmate users of drugs in search of funds to pay for their habit will

         force weaker inmates or their families to pay protection;

         steal weaker inmates personal property;

         force younger/weaker inmates into prostitution; or,

         assault an inmate as an example to others.

vi) inmates under the influence of drugs can assault either inmates or staff.

vii) frequently during hostage taking one of the demands is for drugs.

viii) weak inmates, under pressure from aggressive drug users/dealers have been known to attempt to escape or fail to return from temporary absences.

ix) weaker inmates are sometimes forced to request protective custody.

36. The problems detailed above create both tension and a spiral of violence within institutions. Faced with an increase in these difficulties, CSC has instituted a national anti-drug strategy. The approach was two pronged; the first element was the development of comprehensive Life Skills and Drug Therapy program, and the second was the enhancement of security procedures to the prevent the infiltration of drugs into the institutions. Some of these new security procedures are urinalysis testing, use of drug dogs, and the procurement of Ion Scanners.

37. The new inmate telephone system will assist in preventing drugs from being introduced into institutions, and accordingly will assist in achieving the objectives of national drug strategy. Under the old telephone system inmates had relatively uncontrolled access to the outside. For example, it was possible to place a collect call to a drug dealer and arrange for the introduction of drugs into an institution. The "personal call list" and monitoring features of the new phone system will greatly assist CSC in it's ability to detect and stop these communications.

Therefore, the no cost to inmate local service in the Pacific region was removed by the implementation of the Millennium Phone System. The rates that must be paid for these call are fixed by the CRTC and are implemented by BC Tel, the local service provider.

Richard Montminy explained in is affidavit sworn on September 10, 1997:

5. The first ground of the Notice of Motion indicates that in the Pacific Region "prisoners, who can now telephone locally to friends, family, service agencies, lawyers and community support for free, will be required to make those calls collect at a cost of from $1.75 to $2.75 per call". Based on my approximately five years of experience working with inmate phone systems and based on information currently available to me regarding practices in the Pacific Region, I am able to state the following in response:

a) Inmates in CSC, Pacific Region Institutions, depending on where they are located have three types of phone access:

i) "administrative phones" are provided by the CSC for the use of case management, correctional staff, and inmates in relation to matters such as ensuring the right to counsel and various forms of community contact. These calls are made at no cost to inmates. They are supervised by CSC employees. For example, inmates have a right to counsel and pursuant to that right, they may ask designated staff members to make arrangements for them to contact counsel with administrative phones;

        

ii) "coinless pay phones for purposes of long distance calls" are provided at various institutions so that inmates may make long distance calls at a collect call rates;

        

iii) "coinless pay phone for local service (with the option of a switch over to long distance collect service)"are provided at various institutions. These phone are not "free" since the CSC pays approximately $51.50 to operate each phone per month. This cost to the CSC has not been absorbed in other regions across Canada. Inmates in the Pacific Region are the only inmates in Canada who have this unique type of phone access. Currently that access allows for:

             -local calls that are not charged to inmates

             -blocked access to 1-800, 1-900, 411 and 911 numbers

-a switch-over mechanism that allows for collect long distance calls to be made.

b) Based on my experience I have concluded that the current use of coinless pay phones for local service, as described above, creates the following difficulties:

(i) Their use does not provide any means for addressing serious safety, security and administrative concerns. The millennium phone system addresses these safety, security and administrative concerns.

(ii) Their use does not allow for automated supervision of phone calls, and, as such, their continued use results in a drain of CSC resources in those institutions where staff must supervise inmate calls to allow for an orderly and equitable use of telephones. The millennium phone system requires less staff to supervise inmate calls.

(iii) Their continued use blocks the ability of the CSC to increase the number of phones for inmate use in the Pacific Region institutions since any increase in the number of existing coinless pay phones cannot be matched by the resources which are required to ensure security. As less resources are required for its implementation, the millennium phone system will allow for greater number of pay phones to be provided for the use of inmates in CSC's Pacific Region.

(iv) Their continued use of blocks the ability of the CSC to accurately and easily judge where there is the greatest demand and need for phones, and, as such, the CSC cannot allocate phone resources in an efficient and equitable manner. The millennium phone system will allow for a relatively automatic analysis of the number of users and the extent of use of phone resources. This will allow the CSC to work towards having a greater ratio of phones to users.

(v) Their continued use blocks the ability of the CSC to provide a safe and secure environment for inmates. The provision of a safe environment is a security related goal as well as one that relates to rehabilitation. For example, the millennium system can prevent inmates from calling the family members of other inmates in order to extort favours (since numbers can be blocked on the offending inmates' call lists). As such, inmates will feel more secure and more able to engage in successful rehabilitation.

(vi) Their continued use prevents the CSC from implementing a nationwide phone strategy that is equitable in reference to the distribution of phone an financial resources.

6. I note the reference to a cost of $1.75 to $2.75 per local collect call. These charges are, unfortunately, beyond the control of the CSC since they are predetermined by B.C. Tel, the local provider of phone services, in accordance with rates set by the CRTC. There is no decision of any CSC official that sets these CRTC approved rates.

7. There has been no CSC intent to discriminate against applicants or inmates who do not have the money to pay rates set by the CRTC.

8. In reference to interference with the right to counsel and the ability to make plans for release, the implementation of the millennium phone system will not detract from the use of administrative phone which are provided for these purposes.

9. It has always been the position of the CSC that consultation was not required in order to implement the millennium phone system since the decision ton implement that system related to security matters. This is in compliance with section 74 of the Corrections and Conditional Release Act (CCRA).

ISSUES

In addition to the question of the timeliness of the application for judicial review, two main issues were raised before me at the hearing: the first dealing with the Charter and the second with the interpretation and application of legislative provisions.

These issues can be summarized as follows:

1.      Is the application out of time as being beyond the delay permitted by section 18.1 of the Federal Court Act and if so, should an extension of time be granted by this Court?

2.      Does the cost of $1.75 to $2.75 presently required for a local call in the Pacific Region violate the Canadian Charter of Rights and freedoms and in particular sections 7, 10b) and 15? If there is an infringement of the above-mentioned rights, is it saved by section 1 of the Canadian Charter of Rights and Freedoms?

3.      Based on provisions of the Corrections and Conditional Release Act and of the Corrections and Conditional Release Regulations, have the respondents exceeded their jurisdiction or acted without jurisdiction by implementing a charge or an additional charge for local calls (the Millennium Telephone System)?

APPLICABLE LEGISLATIVE PROVISIONS

The Commissioner's Directive 085, dated on September 5, 1997 provides:

CORRESPONDENCE AND TELEPHONE COMMUNICATION:

POLICY OBJECTIVE

1. To encourage inmates to maintain and develop family and community ties through written correspondence and telephone communication, consistent with the principle of protection of the public, staff members and offenders.

[...]

INMATE TELEPHONE COMMUNICATION

12. National Headquarters shall be responsible for the selection, installation and maintenance of a national inmate telephone system.

13. Access to telephones, through an inmate telephone system. Should be provided, on a fair and consistent basis, to help maintain family and community ties and to provide a direct link with families

in the event of an emergency. To ensure consistency, standards for inmates access to telephones and the use of an inmate telephone system are provided in Annex "B".

14. Telephone calls between inmates and members of the public may be intercepted (interception is defined as the listening to and/or recording of a conversation by some mechanical devices) if both of the criteria outlined in subsection 94(1) of the Corrections and Conditional Release Regulations are met, and in accordance with Commissioner's Directive 575, entitled "Interception of Communications Related to the Maintenance of Institutional Security".

15. The telephone monitoring system provides the institutional head or designate with the ability to manage, supervise and control inmate access to the inmate telephone system and its use for communication with members of the public.

16. Telephone communication is a part of the overall program of reintegration into the community, similar to visits and temporary absences.

17. Telephone calls for humanitarian purposes, such as illness, death in the family, or birth of a child, shall normally be provided without delay.

PREVENTION OF COMMUNICATIONS:

18. An inmate may be prevented from communicating with members of the public by mail or telephone when:

a. the institutional head or designate believes, on reasonable grounds, that the safety of any person, both in the institution and the community would be jeopardized; or

b. the institutional head or designate is satisfied that the intended recipient of the communication, or the parent or guardian of an intended recipient who is a minor, does not want to receive communications from the inmates.

19. Where an inmate's application to have a telephone number added to his or her call allow list is disallowed or an approved telephone number is blocked, pursuant to paragraph 18, the inmate shall be promptly advised of the reasons, in writing, by the institutional head or designate, and shall be given an opportunity to respond.

COMMUNICATION TO RETAIN LEGAL COUNSEL

20. Inmates shall be given the opportunity to retain legal counsel in accordance with Commissioner's Directives 084, entitled "Inmates' Access to Legal Assistance".

COMMUNICATIONS WITH PRIVILEGED CORRESPONDENTS

21. Telephone calls to those identified in annex "A" as authorized privileged correspondents, shall normally be granted. Such calls shall be provided, subject to operational constraints, during normal business hours. Inmates are required to provide reasonable notice, of no less than 24 hours, of their wish to communicate by telephone with privileged correspondents. However, the institutional head or designate may decide, depending on the circumstances, that the reasonable notice is not required.

22. Calls between inmates and privileged correspondents are normally confidential. They may however be subject to interception if both of the conditions stipulated in subsection 94(2) of the Corrections and Conditional Release Regulations are met and in accordance with Commissioner's Directive 575.

23. Should the institutional head or designate determine the need to restrict access to telephone communication with privileged correspondents, he or she shall communicate the rationale for the decision in writing to the inmate and to the person concerned. Copies shall be forwarded to Regional and National Headquarters.

24. Inmates shall normally be responsible for the cost of telephone calls.

25. The institutional head or designate may authorize the use of government telephone network lines by inmates for emergency situations such as serious family illness or death, or for any other special circumstances.

CORRESPONDANCE ET COMMUNICATIONS TÉLÉPHONIQUES

OBJECTIF DE LA POLITIQUE

1. Encourager les détenus à établir et à entretenir des liens avec des membres de leur famille et de la collectivité au moyen de lettres et de communications téléphoniques, conformément au principe relatif à la protection du public, des membres du personnel et des délinquants.

[...]

COMMUNICATIONS TÉLÉPHONIQUES DES DÉTENUS

12. Il incombe à l'Administration centrale de procéder au choix, à l'installation et à l'entretien d'un système téléphonique national pour les détenus.

13. Il faut, par un système téléphonique pour les détenus, donner à ces derniers l'accès à des appareils téléphoniques de

façon équitable et régulière pour les aider à conserver des liens avec les membres de leur famille et de la collectivité et assurer un lien direct avec leur famille en cas d'urgence. Afin d'assurer l'application uniforme de cette politique, des normes relatives à l'accès des détenus aux appareils téléphoniques et à l'utilisation d'un système téléphonique pour les détenus figurent à l'annexe "B"

14. Les appels téléphoniques entre un détenu et un membre de la collectivité peuvent être interceptés (interception se définit par l'écoute et/ou l'enregistrement d'une conversation par des dispositifs mécaniques) si les deux conditions énoncées au paragraphes 94(1) du Règlements sur le système correctionnel et la mise en liberté sous conditions sont présentes, et en conformité avec la Directive du commissaire n ° 575, intitulée « interception des communications relatives au maintien de la sécurité dans l'établissement »

15. Le "système d'interception téléphoniques" donne au directeur ou à la personne désignée la capacité de gérer, de superviser et de contrôler l'accès des détenus au système téléphonique qui leur est destiné et son utilisation pour les communications avec le public.

16. Les communications téléphoniques font partie du programme global de réinsertion sociale au même titre que les visites et les permissions de sortir.

17. Les appels téléphoniques à des fins humanitaires, telles que la maladie, un décès dans la famille ou la naissance d'un

enfant, doivent normalement être autorisés sans délai.

EMPÊCHEMENT DE COMMUNIQUER

18. Un détenu peut être empêché de communiquer avec des membres de la collectivité par correspondance ou par téléphone quant:

a. Le directeur ou la personne désignée a des motifs raisonnables de croire que la sécurité d'une personne, dans l'établissement ou dans la collectivité, serait compromise; ou

b. Le directeur ou la personne désignée est convaincu que le destinataire , ou le père, la mère ou le tuteur du destinataire s'il est un mineur, ne veut pas recevoir de communication du détenu.

19. Lorsque la demande d'un détenu de faire ajouter un numéro de téléphone à sa liste appels autorisés est refusée ou qu'un appel téléphonique approuvé est bloqué, conformément au paragraphe 18, le directeur ou la personne désignée doit l'informer promptement des motifs de la décision et lui donner la possibilité de présenter des observations.

COMMUNICATIONS POUR RETENIR LES SERVICES D'UN AVOCAT

20. Il faut donner au détenu la possibilité de communiquer avec un avocat pour

retenir ses services, conformément à la Directive du commissaire n ° 084, intitulée « Accès des détenus aux services juridiques » .

APPELS AUX CORRESPONDANTS PRIVILÉGIÉS

21. Les appels téléphoniques aux personnes mentionnées à l'annexe "A", à titre de correspondants privilégiés autorisés doivent normalement être accordés. Ces appels doivent, sous réserve des contraites opérationnelles, être autorisés pendant les heures normales de bureau. Les détenus doivent donner un avis raisonnable, soit un maximum de 24 heures, de leur intention de communiquer par téléphone avec les correspondants privilégiés. Le directeur ou la personne désignée peut toutefois décider, selon les circonstances, que l'avis raisonnable n'est pas requis.

22. Les appels téléphoniques entre un détenu et des correspondants privilégiés sont normalement confidentiels. Ces appels peuvent toutefois être interceptés lorsque les deux conditions énoncées au paragraphe 94(2) du Règlement sur le système correctionnel et la mise en liberté sous condition sont présentes, et en conformité avec la Directive du commissaire n ° 575.

23. Si le directeur ou la personne désignée détermine qu'il est nécessaire de restreindre l'accès à la communication téléphonique avec les correspondants privilégiés, il doit justifier sa décision par écrit auprès de la personne concernée et du détenu. Des copies doivent être transmises

aux Administrations régionales et nationale.

24. Les détenus doivent habituellement payer leurs appels téléphoniques.

25. Le directeur ou la personne désignée peut autoriser l'usage d'un téléphone relié au réseau téléphonique du gouvernement dans des situations d'urgence telle une maladie grave ou le décès d'un membre de la famille, ou dans toute autre circonstance spéciale.

The sections of the Corrections and Conditional Release Act pertinent to this matter are the following:

Section 3 of the Corrections and Conditional Release Act provides:

3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by

(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and

(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.

3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.

Section 4 of the Corrections and Conditional Release Act provides :

4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are

(a) that the protection of society be the paramount consideration in the corrections process;

(b) that the sentence be carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, other information from the trial or sentencing process, the release policies of, and any comments from, the National Parole Board, and information obtained from victims and offenders;

(c) that the Service enhance its effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system, and through communication about its correctional policies and programs to offenders, victims and the public;

(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;

(e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence;

(f) that the Service facilitate the involvement of members of the public in matters relating to the operations of the Service;

(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;

(h) that correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements;

(i) that offenders are expected to obey penitentiary rules and conditions governing temporary absence, work release, parole and statutory release, and to actively participate in programs designed to promote their rehabilitation and reintegration; and

(j) that staff members be properly selected and trained, and be given

(i) appropriate career development opportunities,

(ii) good working conditions, including a workplace environment that is free of practices that undermine a person's sense of personal dignity, and

(iii) opportunities to participate in the development of correctional policies and programs.

1992, c. 20, s. 4; 1995, c. 42, s. 2(F).

4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent_:

a) la protection de la société est le critère prépondérant lors de l'application du processus correctionnel;

b) l'exécution de la peine tient compte de toute information pertinente don't le Service dispose, notamment des motifs et recommandations donnés par le juge qui l'a prononcée, des renseignements obtenus au cours du procès ou dans la détermination de la peine ou fournis par les victimes et les délinquants, ainsi que des directives ou observations de la Commission nationale des libérations conditionnelles en ce qui touche la libération;

c) il accroît son efficacité et sa transparence par l'échange, au moment opportun, de renseignements utiles avec les autres éléments du système de justice pénale ainsi que par la communication de ses directives d'orientation générale et programmes correctionnels tant aux délinquants et aux victimes qu'au grand public;

d) les mesures nécessaires à la protection du public, des agents et des délinquants doivent être le moins restrictives possible;

e) le délinquant continue à jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux dont la suppression ou restriction est

une conséquence nécessaire de la peine qui lui est infligée;

f) il facilite la participation du public aux questions relatives à ses activités;

g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;

h) ses directives d'orientation générale, programmes et méthodes respectent les différences ethniques, culturelles et linguistiques, ainsi qu'entre les sexes, et tiennent compte des besoins propres aux femmes, aux autochtones et à d'autres groupes particuliers;

i) il est attendu que les délinquants observent les règlements pénitentiaires et les conditions d'octroi des permissions de sortir, des placements à l'extérieur et des libérations conditionnelles ou d'office et qu'ils participent aux programmes favorisant leur réadaptation et leur réinsertion sociale;

j) il veille au bon recrutement et à la bonne formation de ses agents, leur offre de bonnes conditions de travail dans un milieu exempt de pratiques portant atteinte à la dignité humaine, un plan de carrière avec la possibilité de se perfectionner ainsi que l'occasion de participer à l'élaboration des directives d'orientation générale et programmes correctionnels.

1992, ch. 20, art. 4; 1995, ch. 42, art. 2(F).

Section 5 of the Corrections and Conditional Release Act provides:

5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for

(a) the care and custody of inmates;

(b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;

(c) the preparation of inmates for release;

(d) parole, statutory release supervision and long-term supervision of offenders; and

(e) maintaining a program of public education about the operations of the Service.

1992, c. 20, s. 5; 1997, c. 17, s. 13.

5. Est maintenu le Service correctionnel du Canada, auquel incombent les tâches suivantes_:

a) la prise en charge et la garde des détenus;

b) la mise sur pied de programmes contribuant à la réadaptation des délinquants et à leur réinsertion sociale;

c) la préparation des détenus à leur libération;

d) la supervision à l'égard des mises en liberté conditionnelle ou d'office et la surveillance de longue durée de délinquants;

e) la mise en oeuvre d'un programme d'éducation publique sur ses activités.

1992, ch. 20, art. 5; 1997, ch. 17, art. 13.

Section 71 of the Corrections and Conditional Release Act provides:

71. (1) In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

(2) At each penitentiary, a conspicuous notice shall be posted at the visitor control point, listing the items that a visitor may have in possession beyond the visitor control point.

(3) Where a visitor has in possession, beyond the visitor control point, an item not listed on the notice mentioned in subsection (2) without having previously obtained the permission of a staff member, a staff member may terminate or restrict the visit..         

71. (1) Dans les limites raisonnables fixées par règlement pour assurer la sécurité de quiconque ou du pénitencier, le Service reconnaît à chaque détenu le droit, afin de favoriser ses rapports avec la collectivité, d'entretenir, dans la mesure du possible, des relations, notamment par des visites ou de la correspondance, avec sa famille, ses

amis ou d'autres personnes de l'extérieur du pénitencier.

(2) Dans chaque pénitencier, un avis donnant la liste des objets que les visiteurs peuvent garder avec eux au-delà du poste de vérification doit être placé bien en vue à ce poste.

(3) L'agent peut mettre fin à une visite ou la restreindre lorsque le visiteur est en possession, sans son autorisation ou celle d'un autre agent, d'un objet ne figurant pas dans la liste.

Section 74 of the Corrections and Conditional Release Act provides:

74. The Service shall provide inmates with the opportunity to contribute to decisions of the Service affecting the inmate population as a whole, or affecting a group within the inmate population, except decisions relating to security matters.         

74. Le Service doit permettre aux détenus de participer à ses décisions concernant tout ou partie de la population carcérale, sauf pour les questions de sécurité.

Subsection 96 (z.11) of the Corrections and Conditional Release Act provides:

96. The Governor in Council may make regulations

[...]

(z.11) prescribing anything that by this Part is to be prescribed; and

96. Le gouverneur en conseil peut prendre des règlements_:

[...]

z.11) portant toute mesure d'ordre réglementaire prévue par la présente partie;Rules

Section 97 of the Corrections and Conditional Release Act provides:

97. Subject to this Part and the regulations, the Commissioner may make rules

(a) for the management of the Service;

(b) for the matters described in section 4; and

(c) generally for carrying out the purposes and provisions of this Part and the regulations.

97. Sous réserve de la présente partie et de ses règlements, le commissaire peut établir des règles concernant_:

     a) la gestion du Service;

b) les questions énumérées à l'article 4;

c) toute autre mesure d'application de cette partie et des règlements.

The sections of the Corrections and Conditional Release Regulations, pertinent to this matter are the following:

Section 94 Corrections and Conditional Release Regulations provides:

94. (1) Subject to subsection (2), the institutional head or a staff member designated by the institutional head may authorize, in writing, that communications between an inmate and a member of the public, including letters, telephone conversations and communications in the course of a visit, be opened, read, listened to or otherwise intercepted by a staff member or a mechanical device, where the institutional head or staff member believes on reasonable grounds

(a) that the communications contain or will contain evidence of

(i) an act that would jeopardize the security of

the penitentiary or the safety of any person, or

(ii) a criminal offence or a plan to commit a criminal offence; and

(b) that interception of the communications is the least restrictive measure available in the circumstances.

(2) No institutional head or staff member designated by the institutional head shall authorize the opening of, reading of, listening to or otherwise intercepting of communications between an inmate and a person set out in the schedule, by a staff member or a mechanical device, unless the institutional head or staff member believes on reasonable grounds

(a) that the grounds referred to in subsection (1) exist; and

(b) that the communications are not or will not be the subject of a privilege.

(3) Where a communication is intercepted under subsection (1) or (2), the institutional head or staff member designated by the institutional head shall promptly inform the inmate, in writing, of the reasons for the interception and shall give the inmate an opportunity to make representations with respect thereto, unless the information would adversely affect an ongoing investigation, in which case the inmate shall be informed of the reasons and given an opportunity to make representations with respect thereto on completion of the investigation.

94. (1) Sous réserve du paragraphe (2), le directeur du pénitencier ou l'agent désigné par lui peut autoriser par écrit que des communications entre le détenu et un membre du public soient interceptées de quelque manière que se soit par un agent ou avec un moyen technique, notamment que des lettres soient ouvertes et lues et que des conversations faites par téléphone ou pendant les visites soient écoutées, lorsqu'il a des motifs raisonnables de croire :

a) d'une part, que la communication contient ou contiendra des éléments de preuve relatifs :

(i) soit à un acte qui compromettrait la sécurité du pénitencier ou de quiconque,

(ii) soit à une infraction criminelle ou à un plan en vue de commettre une infraction criminelle;

b) d'autre part, que l'interception des communications est la solution la moins restrictive dans les circonstances.

(2) Ni le directeur du pénitencier ni l'agent désigné par lui ne peuvent autoriser l'interception de communications entre le détenu et une personne désignée à l'annexe par un agent ou par un moyen technique, notamment l'ouverture, la lecture ou l'écoute, à moins qu'ils n'aient des motifs raisonnables de croire :

a) d'une part, que les motifs mentionnés au paragraphe (1) existent;

b) d'autre part, que les communications n'ont pas ou n'auront pas un caractère privilégié.

(3) Lorsqu'une communication est interceptée en application des paragraphes (1) ou (2), le directeur du pénitencier ou l'agent désigné par lui doit aviser le détenu, promptement et par écrit, des motifs de cette mesure et lui donner la possibilité de présenter ses observations à ce sujet, à moins que cet avis ne risque de nuire à une enquête en cours, auquel cas l'avis au détenu et la possibilité de présenter ses observations doivent être donnés à la conclusion de l'enquête.

Section 95 Corrections and Conditional Release Regulations provides:

95. (1) The institutional head or a staff member designated by the institutional head may prevent an inmate from communicating with a person by mail or telephone if

(a) the institutional head or staff member believes on reasonable grounds that the safety of any person would be jeopardized; or

(b) the intended recipient of the communication, or the parent or guardian of the intended recipient where the intended recipient is a minor, submits a request in writing to the institutional head or staff member that the intended recipient not receive any communication from the inmate.

(2) Where an inmate is prevented under subsection (1) from communicating with a person, the institutional head or staff member designated by the institutional head, as the case may be, shall promptly inform the inmate, in writing, of the reasons and shall give the inmate an opportunity to make representations with respect thereto.

95. (1) Le directeur du pénitencier ou l'agent désigné par lui peut empêcher le détenu de communiquer, par lettre ou par téléphone, avec quiconque lorsque, selon le cas :

a) il a des motifs raisonnables de croire que la sécurité de quiconque serait menacée;

b) le destinataire, ou le père, la mère ou le tuteur du destinataire, si celui-ci est mineur, en fait la demande par écrit au directeur du pénitencier ou à l'agent désigné par lui.

(2) Lorsque le directeur du pénitencier ou l'agent désigné par lui empêche le détenu de communiquer avec une personne en application du paragraphe (1), il doit aviser le détenu des motifs de cette mesure, promptement et par écrit, et lui donner la possibilité de présenter ses observations à ce sujet.

Section 97 Corrections and Conditional Release Regulations provides:

97. (1) The Service shall ensure that each inmate is given, on arrest, an opportunity to retain and instruct legal counsel without delay and that every inmate is informed of their right thereto.

(2) The Service shall ensure that every inmate is given a reasonable opportunity to retain and instruct legal counsel

without delay and that every inmate is informed of the inmate's right to legal counsel where the inmate

(a) is placed in administrative segregation; or

(b) is the subject of a proposed involuntary transfer pursuant to section 12 or has been the subject of an emergency transfer pursuant to section 13.

(3) The Service shall ensure that every inmate has reasonable access to

(a) legal counsel and legal reading materials;

(b) non-legal materials, including (i) Commissioner's Directives, and

(ii) regional instructions and institutional standing orders, except those relating to security matters; and

(c) a commissioner for taking oaths and affidavits.

97. (1) Le Service doit veiller à ce que, dès son arrestation, le détenu ait la possibilité d'avoir recours sans délai à l'assistance d'un avocat et de lui donner des instructions et que le détenu soit informé de ce droit.

(2) Le Service doit veiller à ce que le détenu ait la possibilité, dans des limites

raisonnables, d'avoir recours sans délai à l'assistance d'un avocat et de lui donner des instructions et que le détenu soit informé de ce droit :

a) soit lorsqu'il est mis en isolement préventif;

b) soit lorsqu'il fait l'objet d'un projet de transfèrement imposé en application de l'article 12 ou d'un transfèrement d'urgence, en application de l'article 13.

(3) Le Service doit veiller à ce que le détenu ait accès, dans des limites raisonnables :

a) à un avocat et à des textes juridiques;

b) à des textes non juridiques, y compris :

(i) les Directives du commissaire,

(ii) les instructions régionales et les ordres permanents du pénitencier, sauf ceux qui portent sur les questions de sécurité;

c) à un commissaire aux serments.

ANALYSIS

Extension of time

The respondents allege that the applicants filed their originating notice of motion beyond the thirty (30) days time limit permitted by the section 18.1 of the Federal Court Act.

Section 18.1 of the Federal Court Act provides:

Application for judicial review

Time limitation

18.1(2)      An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.

Demande de contrôle judiciaire

Délai de présentation

18.1(2)      Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.

The applicants contend that the time limit for filing the application for judicial review runs from August 15, 1997 which is the date that the respondents communicated their decision to implement the Millennium Telephone System in the penitentiaries of British Columbia to the applicants.

The applicants also allege that the information on the Millennium Telephone System filtered through to the applicants over a period of many months. They note that the Commissioner's Directive 085 was amended on September 5, 1997, the day after the applicants filed their originating notice of motion.

I am satisfied that the decision to implement the Millennium Telephone System across the country gave rise to an ongoing situation and I am also satisfied that the correspondence between the parties explains the delay in the filing of the originating notice of motion. It was demonstrated that the parties had an agreement to postpone the filing of the present application, pending a decision in the Hunter case.

The applicants assert that the application for judicial review in this matter was filed within thirty days of the last decision that was communicated to the applicants pertaining to the implementation of Millennium Telephone System.

In any event, I am satisfied that, based on the jurisprudence of this Court2, the applicants have satisfied the requirements for an extension of time if one is needed.

The applicants in this case have demonstrated, by their grievances and letters to the authorities, a continuing intention to bring proceedings against the respondents.

In determining whether or not an extension of time should be granted, the Court must consider whether or not there is an arguable case. It has already been determined by me in the interlocutory injunction proceeding that there is a serious question to be tried in this case.

The applicants have demonstrated an intention to challenge the decision to implement the Millennium Telephone System in the Pacific Region since they were first advised of the details of it . There is an arguable case, and it is in the interests of justice that an extension of time be granted. This extension of time does not result in any prejudice to the respondents.

The Canadian Charter of Rights and Freedom

Section 32

Before dealing with the Charter issues, I must consider the respondents' argument that this is a matter that cannot be challenged under the Charter.

The respondents submit that there are no recognized rights of the inmates to have access to the no cost coinless pay phone system for local calls and, in these circumstances the Correctional Service of Canada is, therefore entitled to remove this system.

The respondents submit that the specific issue is not within the control of government since the cost of local call is fixed by the Telephone company with the approval of the CRTC.

    

The respondents submit that in this case, not providing such phone service to the inmates constitutes government inaction which is not covered by the Charter. They rely on the judgment of O'Driscoll J. of the Ontario Court of Justice, General Division, where he indicated in Masse3 for the majority:

"Conclusions

[1] In this case, the Applicants complain of poverty and government inaction insofar as the amount of GWAA and FBA payments are "not enough". However, in the absence of the reduced social assistance payments, the Applicants would face an even greater burden brought about by the cost of rent and food, non-governmental activity.

In my view, the impugned regulations do not increase but alleviate the Applicants' burden (albeit not to their satisfaction). It is, in my view, government inaction that is complained of by the Applicants and not "government action" within the meaning of section 32 of the Charter. Government inaction cannot be the subject of a Charter challenge.

         Section 32.(1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

         See:

;McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 318

Adler v. Ontario (1994), 19 O.R. (3d) 1, 18 (Ont. C.A.).

What is really complained of in this case is not government action, but government inaction which in the circumstances of this case cannot be the subject of a Charter challenge.

[2] In my view, section 7 does not provide the Applicants with any legal right to minimal social assistance. The Legislature could repeal the social assistance statutes (FBA and GWAA); there is no question that the Lieutenant Governor in Council is empowered to increase and/or decrease the rates of social assistance.[...]"

I am not prepared to say that this is a case of government inaction. Here, the government has implemented a positive policy based on security considerations. Therefore, I will not dispose of this matter on this ground and I will proceed to the analysis of the Charter claims raised by the applicants at the hearing.

The respondents also submitted that this is an economic issue and the Charter does not protect economic rights. However, the applicants have raised other issues which must be considered.

The applicants raised a Charter arguments grounded on section 9 of the Charter in their originating notice of motion, but did not pursue it at the hearing. Accordingly, that claim is dismissed.

Section 7

The applicants submit that the decision to implement the Millennium Telephone System by the respondents impedes their right to be transferred to lower security facilities, to make plans for release, and causes them to spend a longer period in custody, without due process, contrary to the common law duty to act fairly, the principles of natural justice and section 7 of the Charter.

    

They allege that the inability to establish and maintain positive community and family relationships because of their reduced ability to place local telephone calls will deprive inmates of the opportunity to reintegrate themselves into society as law abiding citizens.

        

The Supreme Court of Canada has ruled in Operation Dismantle Inc.4 that the violation of a right protected by the Charter cannot be only speculative, Mr. Justice Dickson, wrote for the majority:

Madame Justice Wilson in her reasons in the present case summarized the relevant principles as follows [p.515, post]:

The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action "with some chance of success" (Drummond Jackson v. British Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at p. 138, is it "plain and obvious that the action cannot succeed".

I agree with Madame Justice Wilson that, regardless of the basis upon which the appellants advance their claim for declaratory relief -- whether it be s. 24(1) of the Charter, s.52 of the Constitution Act, 1982, or the common law -- they must at least be able to establish a threat of violation, if not an actual violation, of their rights under the Charter.

In short then, for the appellants to succeed on this appeal, they must show that they have some chance of proving that the action of the Canadian government has caused a violation or a threat of violation of their rights under the Charter.

On this issue, the applicants have failed to demonstrate that a real threat of violation of section 7 of the Charter exists. In fact, the supporting arguments are purely speculative with no factual evidence to support them.

I am satisfied that the implementation of the Millennium Telephone system does not, in itself, constitute a violation of section 7 of the Charter. As the respondents allege, the main issue in this case is based on an economic matter: the costs of local calls generated by the Millennium Telephone System.

The Supreme Court of Canada has ruled in the Irwin Toy Ltd decision5 that the Charter does not offer protection based on economic grounds:

The intentional exclusion of property from s. 7, and the substitution therefor of "security of the person" has, in our estimation, a dual effect. First, it leads to a general inference that economic rights as generally encompassed by the term "property" are not within the perimeters of the s. 7 guarantee. This is not to declare, however, that no right with an economic component can fall within "security of the person". Lower courts have found that the rubric of "economic rights"embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property - contract rights. To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous. We do not, at this moment, choose to pronounce upon whether those economic rights fundamental to human life or survival are to be treated as though they are of the same ilk as corporate-commercial economic rights. In so stating, we find the second effect of the inclusion of "security of the person" to be that a corporation's economic rights find no constitutional protection in that section.

In his text: Constitutional Law of Canada, 3rd edition (Supp) (1992), at p. 44-9 to p. 44-10, Professor Peter Hogg, in commenting upon the "window" left open by the Supreme Court of Canada as to whether a section 7 Charter right exists with respect to economic rights fundamental to human life or survival, wrote: "As Oliver Wendell Holmes would have pointed out, these are the issues upon which elections are won and lost; the judge needs a clear mandate to enter that arena, and s. 7 does not provide that clear mandate.

Having concluded that the applicants have not been deprived of the right to life, liberty and security of the person under section 7 of the Charter, there is no need to proceed to step two under section 7 of the Charter, i.e. whether the deprivation is contrary to fundamental justice.

The implementation of the Millennium Telephone System does not constitute a substantial change in the conditions of detention of the inmates as Madam Justice McLachlin established, in Cunningham v. Canada67:

The Charter does not protect against insignificant or "trivial" limitations of rights: R. v. Edwards Books and Art Ltd, [1986] 2 R.C.S. 713, at p 759 (per Dickson C.K.); R. v. Jones, [1986] 2 R.C.S.284, at p. 314; Lavigne v. Ontario Public Service Employees Union, [1991] 2 R.C.S. 211, at p 259; Andrews v. Law Society of British Columbia, [1989] 1 S.R.C. 143, at pp. 168-69. It follows that qualification of a prisoner's expectation of liberty does not necessarily bring the matter within the purview of s. 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. To require that all changes to the manner in which a sentence is served be in accordance with the principals of fundamental justice would trivialize the protections under the Charter. To quote Lamer J. in Dumas, supra, at p. 464, there must be a "substantial change in conditions amounting to a further deprivation of liberty.

Subsection 10(b)

On the evidence before me, there is nothing in the decision to implement the new telephone system that necessitates a breach of subsection 10(b) of the Charter. It is speculative to say that it will result in a breach of such rights. Any allegations would have to be dealt with on a case by case basis.

There is a good deal of evidence that the penitentiaries have been put in place specific policies to assure the inmates access to a telephone to protect his or her rights.

In these circumstances, I cannot find any violation of subsection 10(b).

Section 15

The applicants contend that by implementing the Millennium Telephone System, the respondents will act in excess of or without jurisdiction by discriminating against those of the applicants who do not have the money to pay for the additional costs of the new system because they are from a lower social economic background, contrary to section 15 of the Canadian Charter of Rights and Freedoms.

The applicants allege that the inmates represent an analogous group under section 15 of the Canadian Charter of Rights and Freedoms, as "poor prisoners and/or inmates". As evidence, they submit the analysis of Mr. Michael Jackson, Professor of Law at the University of British Columbia, an expert in the areas of native rights and prisoner rights.8

They argue that many studies, enquiries, and academic writings have documented the over-representation of poor and other socially disadvantaged groups in Canada's penitentiary population.

They contend that the Millennium Telephone system will have a greater impact on poor prisoners than it will on prisoners whose families can afford to pay $1.75 per telephone call, or on prisoners who can afford to reimburse their families and friends for that expense.

Family members of some of the applicants have sworn affidavits in this matter, deposing that they speak to their jailed family member a number of times a day in order to maintain strong and healthy relationships. Even at one telephone call per day, the cost per month of accepting a daily call from an incarcerated family member would be approximately $50.00. per month. Given current welfare rates in British Columbia, this would be impossible.

Although the cost to the recipients, of the applicants' telephone calls, is $1.75 per call in British Columbia, in Ontario and Quebec it is $0.75 plus applicable taxes. On average, prisoners in British Columbia receive less pay than prisoners in Ontario and Quebec, and therefore are in a worse position to bear the costs of reimbursing their family and friends for the collect calls.

It was submitted that poor prisoners in the Pacific Region suffer from stereotyping and social prejudice, and have suffered historical disadvantages and political prejudice. Therefore, they have been discriminated against based on grounds that could be considered analogous to the enumerated grounds of discrimination in section 15. Inmates generally are vulnerable to political and social prejudice. Further, as a sub-group inmates in the Pacific Region earn less money, and pay more for toiletries, etc. than prisoners elsewhere in Canada.

It was also submitted that the experience in the Pacific Region with the Millennium Telephone System to date has proven that prisoners' access to family, friends and legal counsel have been reduced, solely as a result of the inmates' inability to pay the exorbitant cost of the Millennium Telephone System, with its collect call only feature.

The respondents contend that there are two other issues which flow from the complaint. First, the persons affected by the cost of the system, that is the recipients of the local telephone calls, are not a party to this proceeding. Secondly, with regard to the cost: the local rates are not within the control of CSC but of the CRTC and BC Tel.

The applicants have accepted that there would be no claim of infringement of section 15 rights if the rate for local calls was 25 ¢ or if a debit card was in use.

The respondents contend that in these circumstances, the issue is an economic one and that the Canadian Charter of Rights and Freedoms does not deal with economic rights.

As MacKay J. said in Forrest v. Canada (Solicitor General)9, the test for a breach of section 15 of the Charter was set out by the Supreme Court of Canada in Andrews v. Law Society of British-Columbia10 and interpreted by the Court in the more recent case of Miron v. Trudel11. The two step process, relied upon by four judges in Miron, has since been endorsed by a unanimous Supreme Court of Canada in Benner v. Canada (Secretary of State)12. More recently, the majority of the Court commented on section 15 in Vriend v. Alberta13:

"The essential requirements of all these cases will be satisfied by enquiring first, whether there is a distinction which results in the denial of equality before or under the law, or equal protection or benefit of the law; and second, whether this denial constitutes discrimination on the basis of an enumerated or analogous grounds."

The meaning of discrimination was described by McIntyre J., in Andrews as follows:

"I would say then that discrimination may be described as distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has effect of imposing burdens, obligations, or disadvantage 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."14

Following the evidence submitted before this Court, I am not persuaded that the applicants have been denied equal protection or benefit under the law following section 15 of the Charter.

As I previously noted, the applicants have accepted that there would be no claim of an infringement of section 15 rights if the rate for local calls was 25 ¢ or if a debit card was in use.

Regarding the situation in the penitentiaries, it appears that administrative phones are available in special circumstances.

Regarding the second requirement "whether this denial constitutes discrimination on the basis of an enumerated or analogous ground", I am not satisfied that the discrimination invoked by the applicants is "based on grounds relating to personal characteristics of the individual or group".

Based on the evidence presented before this Court with regards to the situation of the "poor" in penitentiaries, it is clear that the distinction in this case, resulting from the contested Commissioner's Directive, is based on the economic situation of the inmates.

Madam Justice L'Heureux-Dubé, dissenting in the Supreme Court of Canada judgment, Egan v. Canada15 mentioned that:

"As I note earlier, the Charter is not a document of economic rights and freedoms. Rather, it only protects "economic rights" when such protection is necessarily incidental to protection of the worth and dignity of the human person"

In this case, I find the economic right not incidental to the protection of another right directly related to the worth and dignity of the human person.

It appears that the inmates still have the right to use the phone to communicate with their family. In any event, they are still allowed to receive and send letters and they can also receive visitors.

Although I acknowledge that the cost of the Millennium Telephone System in British Columbia is more than the cost to inmates and families in other parts of the country, I am not satisfied that $1.50 or $1.75 per call is so excessive as to prevent any contact whatsoever. It may result in fewer calls or increased visits or letter writing. However, at this point and given the security considerations. I am not prepared to say that $1.50 or $1.75 per call is prohibitive.

In addition to the fact that the economic situation of a group of people does not constitute a ground relating to personal characteristics, I also conclude that the group described as a group of "poor prisoner" is not an analogous group under section 15 of the Charter.

In advancing the argument that "poor people" constitute an analogous group under section 15 of the Canadian Charter of Rights and Freedoms, the applicant relied on a decision of the Supreme Court of British Columbia16, which recognizes that persons receiving income assistance constitute a discrete and insular minority under section 15 of the Charter.

With respect, I do not share the conclusion of Parrett J., when he states:

Applying the test under s. 15 of the Charter, it is clear that persons receiving income assistance constitute a discrete and insular minority within the meaning of s. 15. It may be reasonably inferred that because recipients of public assistance generally lack substantial political influence, they comprise "those groups in society to whose needs and wishes elected officials have no apparent interest in attending"17.

Rather, I adopt the analysis of O' Driscoll J. of the Ontario Court of Justice (General Division) in Masse18:

     (g) Section 15 of the Charter protects discreet and insular minorities. It does not protect disparate and heterogeneous groups.

     The affidavit of Gerard Kennedy demonstrates that the class of social assistance recipients is heterogeneous and their status is not a personal characteristic within the meaning of s. 15(1) of the Charter. The class is not related to merit or capacity. Statistics show that the class is not immutable.

    

     In my view, those in receipt of social assistance do not constitute a named protected group under s. 15(1) nor a group analogous thereto.

     In my view, poverty embraces many more persons than those in receipt of social assistance

     Having concluded that the Applicants do not form an analogous protected group under section 15(1) of the Charter, there is no need to consider the other submissions concerning s. 15(1) of the Charter.

It is worthy of mention that the difficulty in this case of finding a ground based on personal characteristics, is essentially because the distinction originates from the situation of the family members who are unable to accept the collect call. One could easily imagine a situation where there is a poor inmate but his or her family is financially able to accept the collect call. In such a situation, no distinction could be invoked as a result of the Commissioner's Directive 085, based on the economic situation of the inmates.

In fact, the discrimination invoked here depends more on the financial situation of the people called by the inmate than on the financial situation of the inmate.

In any event, I reiterate the position of this Court that prisoners and/or inmates do not constitute an analogous group under section 15 of the Charter as stated in Sauvé v. Canada (chief Electoral Officer)1920:

"Prisoners, as a class, have generally not been viewed as an analogous group under 15 of the Charter. In Jackson v. Joyceville Penitentiary, supra, at pages 111-113, Mackay J. held that prisoners were not an analogous group under section 15. In that case , the Court considered section 41 of the Penitentiary Service Regulations [C.R.C., c. 1251(as am. By SOR/80-462, s. 1]., which provided for differential treatment of prison inmates as compared with other individuals in Canada. Justice MacKay found that the impugned provision did not discriminate against prison inmates on the basis of any analogous grounds. In fact, he indicated that section 15 was not even engaged in that case, as the difference in treatment of prison inmates as a group arose not from their personal characteristics, but from past courses of conduct which amounted to crimes against society."

Section 1

The analysis of the test, under section 1 of the Charter by Madam Justice MacLachlin in RJR MacDonald Inc21, is the most recent pronouncement of the Supreme Court of Canada on this section.

Madam Justice McLachlin examined the factors which must be considered in determining whether a law that violates constitutional rights is nevertheless "reasonable" and "demonstrably justified":

If the objective of a law which limits constitutional rights lacks sufficient importance, the infringement cannot be reasonable or justified. Similarly, if the good which may be achieved by the law pales beside the seriousness of the infringement of rights which it works, that law cannot be considered reasonable or justified.

[...]

First, to be saved under s. 1 the party defending the law (here the Attorney General of Canada) must show that the law which violates the right or freedom guaranteed by the Charter is "reasonable". In other words, the infringing measure must be justifiable by the processes of reason and rationality. The question is not whether the measure is popular or accords with the current public opinion polls. The question is rather whether it can be justified by application of the processes of reason. In the legal context, reason imports the notion of inference from evidence or established truths. This is not to deny intuition its role, or to require proof to the standards required by science in every case, but it is to insist on a rational, reasoned defensibility.

[...]

Second, to meet its burden under s. 1 of the Charter, the state must show that the violative law is "demonstrably justified". The choice of the word "demonstrably" is critical. The process is not one of mere intuition, nor is it one of deference to Parliament's choice. It is a process of demonstration. This reinforces the notion inherent in the word "reasonable" of rational inference from evidence or established truths.

[...]

No matter how important Parliament's goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail.

Madam Justice McLachlin then reviewed the factor to be considered under section 1:

The factors generally relevant to determining whether a violative law is reasonable and demonstrably justified in a free and democratic society remain those set out in Oakes. The first requirement is that the objective of the law limiting the Charter right or freedom must be of sufficient importance to warrant overriding it. The second is that the means chosen to achieve the objective must be proportional to the objective and the effect of the law -- proportionate, in short, to the good which it may produce. Three matters are considered in determining proportionality: the measures chosen must be rationally connected to the objective; they must impair the guaranteed right or freedom as little as reasonably possible (minimal impairment); and there must be overall proportionality between the deleterious effects of the measures and the salutary effects of the law.

[...]

In short, s. 1 is an exercise based on the facts of the law at issue and the proof offered of its justification, not on abstractions.

She added:

A limit prescribed by law should not be struck out merely because the Court can conceive of an alternative which seems to it to be less restrictive.

She concluded:

Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the Constitution.

With respect to the standard of proof, she stated:

As the s. 1 jurisprudence has established, the civil standard of proof on a balance of probabilities at all stages of the proportionality analysis is more appropriate.

In the circumstances, I do not find it necessary to conduct an extensive analysis of the application of section 1 of the Charter and I accept, based on the facts before me, that the implementation of the new telephone system is reasonable and demonstrably justified in a free and democratic society for the purposes of section 1 of the Charter. The objective of the system is of sufficient importance and the means used are proportionate.

Statutory provision

The applicants have submitted that contrary to section 74 of the CCRA, the inmates had no opportunity to make representations before the implementation of the new telephone system.

However, the statutory obligation to consult under this section is limited and does not apply to decisions relating to security matters. In circumstances such as these, I find that the respondents did not have an obligation to consult the inmates before making the decision to implement the Millennium Telephone System.

Furthermore, it appears on the evidence that the respondents tried to involve the in inmates as much as possible, in the implementation of the system, by consultation with the inmate committees in order to determine the phone numbers to be included on the common access list.

It was also demonstrated before me that the head of the inmate committee had sent a letter to the authorities raising certain problems and explaining their position regarding the implementation of the system in the Pacific region. The evidence indicates that they received a response from the Correctional Service of Canada.

The applicants raised a decision made by Rothstein, J. in Williams Head Institution Inmate Committee v. Canada (Corrections Service) (1993)22 where a penitentiary decided to terminate the University program without consultation. Unlike to the matter raised before me, that was an educational issue. Here we are dealing with security matters, as Mr. Montminy has explained in his affidavit.

There is nothing in subsection 71 (1) CCRA, section 95 of the CCRR and the Commissioner's Directive 085 which compels the respondents to give local telephone access to the inmates at no cost.

Nor does the implementation of the system violate section 95 of the CCRR. This section does not deal with telephone access alone, but with communication with a person. Nothing in the Millennium telephone system prevents contact by mail.

The Commissioner's Directive 085 does not prevent inmates from making phone calls.

I am satisfied that the decision to implement the Millennium Telephone System does not authorize nor does it result in communications being actively intercepted or prevented, other than in those cases that meet the criteria set out in sections 94 and 95 of the CCRR.

Therefore, I concluded that the decision to implement the Millennium Telephone System does not contravene the CCRR.

CONCLUSION     

Accordingly, the application for judicial review is dismissed without costs.

____________________________

Associate Chief Justice

Ottawa, Ontario

March 10, 1999

__________________

¹
1      ;Hunter et al. v. Canada (Commissioner of Corrections) et al., [1997] 3 F.C. 936.     

²      Grewal v. Canada (Minister of Employment & Immigration),[1985] 2 F.C. 263 (C.A.).          Skycharter Ltd v. Canada (Minister of transport), (1997) 125 F.T.R. 307 (T.D.).          Leblanc v.National Bank of Canada, [1994] 1 F.C. 81(T.D.).         

³      Masse v. Ontario (Ministry of Community & Social Services)(1996), 40 Admin. L.R. (2d) 87 (Ont. Div. Ct.).

⁴      Operation Dismantle Inc.et al. v. The Queen et al., [1985] 1 S.R.C. 441.

⁵      Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. p.1003.

⁶      Cunningham v. Canada,

⁷ [1993] 2 S.C.R. 143.

⁸      Affidavit of Michael JACKSON sworn on August 18, 1997, applicants' record p.118.

⁹      Forrest v. Canada (Solicitor General), [1998] F.C.J. No. 1483.

¹⁰      Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

¹¹      Miron v. Trudel, [1995] 2 S.C.R. 418.

¹²      Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.

¹³      [1998] S.C.R. 493">Vriend v. Alberta, [1998] S.C.R. 493.

¹⁴      Supra, Note 9.

¹⁵      Egan v. Canada, [1995] 2 S.C.R. 513.

¹⁶      Federated Anti-Poverty Groups of British Columbia v. British Columbia (Attorney General) (1991), 70 B.C.L.R. (2d) (B.C.S.C.) p. 325.

¹⁷      Ibid. at 344.

¹⁸      Supra, note 3.

¹⁹      Sauvé v. Canada (chief Electoral Officer)

²⁰, [1996] 1 F.C. 857 (T.D.).

²¹      RJR MacDonald Inc. v. Canada (Attorney General) et al., [1995] 3 S.C.R. 199.

²²      Williams Head Institution Inmate Committee v. Canada (Corrections Service) (1993), 66 F.T.R. 262 (T.D.).