Davison v. Canada (Commissioner of Corrections), docket T-1430-96

Date: 19971209

Docket: T-1430-96

Docket: T-1431-96

BETWEEN:

     CHARLES B. DAVISON

     Applicant,

     - and -

     THE COMMISSIONER OF CORRECTIONS,

     THE SOLICITOR GENERAL OF CANADA, and

     THE ATTORNEY GENERAL OF CANADA,

     Respondents.

     REASONS FOR ORDER

     [Delivered from the Bench at Edmonton, Alberta

     on Wednesday, October 8th, 1997 as edited]

CAMPBELL, J.

[1]      These are my reasons in relation to the preliminary objections made by the Crown on files, T-1430-96 and T-1431-96. With respect to T-1430-96, which concerns Mr. Davison's objections to the physical surroundings supplied for a visit on May 30th, 1996, the provisions of Section 18.1(1) of the Federal Court Act are important to consider.

[2]      Under that section, an application for Judicial Review can be made by the Attorney General of Canada, or "anyone directly affected by the matter in respect of which relief is sought".

[3]      With respect to the phrase "anyone directly affected," while Mr. Davison might be, in a practical sense, directly affected by the decision taken in this case, the question is whether this alone provides him with legal standing to bring a Judicial Review application.

[4]      With respect to the phrase "by the matter in respect of which relief is sought," I find that in the context here, the matter in respect of which relief is sought has to be the wrongful infringement of a visiting right or privilege.

[5]      By virtue of Section 90 of the Corrections and Conditional Release Act Regulations, the right of concern is clearly a personal right of a particular inmate to visitation and not that of a visitor, whatever his or her credentials. Thus, at the very least, before a Judicial Review can be brought for the infringement of such a right, in my opinion, the inmate concerned must clearly state an objection to the administrative action taken. Normally this is stated in the form of him or her voicing the objection and perhaps filing a grievance or, indeed, filing an originating notice of motion challenging the decision objected to.

[6]      In a case such as this, for someone else to do so as a person "directly affected," it is

still necessary as a condition precedent to that person gaining standing that the inmate, in respect of whom the decision regarding visitation has been taken, has made a clear objection to the action taken. Since this has not occurred, I find Mr. Davison does not have standing to bring this application. Even if Mr. Davison were to obtain standing in this case, the question still remains whether I should exercise my discretion to grant the relief requested.

[7]      Mr. Davison's reason for bringing the application is to follow through on his warning to the prison authorities that, if he could not get an agreement to his view on the visiting rights and privileges, he would go to court to obtain a "ruling that will guide all of us as to our respective rights, duties, and obligations."

[8]      In my opinion, this is an inappropriate use of Judicial Review, unless it is brought in the context of a particular inmate's rights being infringed and to which that inmate objects.

[9]      Beyond ruling on this substantive legal issue, I do not believe the Court has any supervisory powers. The issue of concern here is the physical surroundings supplied for a visit on May 30th, 1996. The visit requested by Mr. Davison did take place, it is just the physical circumstances that he objects to.

[10]      The decision complained of was made more than one and a half years ago and, since there is no evidence to say that there is a live controversy about visitation conditions, I consider the issue moot. I do not believe that Judicial Review should be used to solve a relationship problem between the Bar and the institution around visiting rights and privileges. In my opinion, the best route to resolving a conflict such as this is negotiation, not litigation.

[11]      Accordingly, this application is dismissed. There will be no Order as to costs.

[12]      Respecting File T-1431-96, this application concerns a question which was put to Mr. Davison by the assistant warden on May 23rd, 1996, in which he was asked if the inmates he wished to meet were his clients. I find that the same objections to standing can be properly maintained as those in T-1430-96; that is, as a condition precedent, an inmate must voice an objection to a decision that has been made. Not one of the "number of inmates" he intended to visit has objected.

[13]      As stated in the originating notice of motion, the purpose for bringing the motion is for a declaration that the respondents "are not entitled to know or be told the particulars of the legal relationship or of the legal business to be conducted at a private meeting between counsel and inmates taking place inside a correctional institution". Because no inmate has objected in this respect, I find that Mr. Davison has no standing in this application.

[14]      There is also a real issue in this case as to whether a single decision is under review. The originating notice of motion cites the decision as

[15]      There is no proof of this. The assistant warden requested information from Mr. Davison, which is a question, not a decision.

[16]      Regarding the consultation which institution officials had with the inmates before the visit was cleared, if the assistant warden did say that if the inmates were prepared to provide a "written statement" that Mr. Davison is their counsel then he would be permitted into the institution the next day, I find the assistant warden's statement is only a statement of intention and is not a decision. In addition, I find the consultation with the inmates constituted posing a question, not making a decision.

[17]      Asking the inmates such a question is a procedure which is useful and considerate of the inmates. In the context of a prison, this is an important question, because by Section 90 of the Regulations, an inmate has special privileges with respect to the circumstances of visits with counsel. There is no evidence of the answer, if any, provided by the inmates. Indeed, Mr. Davison was permitted into the institution the next day without objection.

[18]      I find there is no decision to review, and accordingly, this application is dismissed. On this file as well, I make no Order as to costs.

     Douglas R. Campbell

     Judge

OTTAWA, ONTARIO

December 9, 1997