Bissonnette v. Commissioner of Corrections, docket T-2085-96

     T-2085-96

BETWEEN:

     TIMMINS BISSONNETTE and MICHAEL WALLACE

     of Frontenac Institution located in the County of

     Frontenac, Province of Ontario

     Applicants

     - AND -

     THE COMMISSIONER OF CORRECTIONS,

     THE DEPUTY COMMISSIONER FOR ONTARIO

     and THE WARDEN OF FRONTENAC INSTITUTION

     Respondents

     REASONS FOR ORDER

LUTFY, J.:

     This is an application pursuant to section 18 of the Federal Court Act for judicial review of the decision of September 5, 1996 of the respondent Warden of the Frontenac Institution ("the Warden"), refusing his approval for the utilization of moneys from the Inmate Welfare Fund for the purpose of paying legal fees in another application for judicial review under Court File T-2439-95. The applicants and two of the respondents in this proceeding are among the parties in the application under Court File T-2439-95

     The originating application in Court File T-2439-95 seeks judicial review of a decision made in July 1995 by the respondent Deputy Commissioner for Ontario to implement a new telephone system in federal penitentiaries throughout the province.

     On December 1, 1995, Denault J. issued an interlocutory injunction restraining the implementation of the voice-over feature of the new telephone system until such time as the application for judicial review could be heard on its merits. The motions judge concluded that the voice-over feature of the new system might infringe the inmates' Charter rights, specifically their freedom of expression, and might be in violation of relevant legislation.

     The applicants, in this second application for judicial review, seek an order compelling the Warden to authorize the payment of their solicitor's fees prior to the hearing on the merits of the application for judicial review concerning the new telephone system. That hearing is now scheduled for November 5, 1996.

THE FACTS

     The Frontenac Institution has an elected Inmate Committee whose mandate is to represent the best interests and welfare of the inmate population and to act as a liaison with the administration. The Inmate Committee's duties include making recommendations to the Warden regarding the use of the Inmate Welfare Fund. There appears to be no practical distinction between the Inmate Committee and the Inmate Welfare Committee.

     No one suggests that the Inmate Welfare Fund is owned by the respondents or the penal institutions. It is acknowledged that the moneys are for the sole benefit of the Inmate Committee and the collectivity of inmates at any given institution. Expenditures from the Fund are subject to the Warden's approval.

     The moneys for the Inmate Welfare Fund derive from deductions from approved earnings of the inmates, canteen profits, interest on the fund's cash balance, the receipt of gifts authorized by the institution and fundraising activities carried out by the inmates under the authority of the institution.

     Inmates may also collect funds using the Bulk Request to Disburse Funds form. In this case, the applicant Timmins Bissonnette, the Secretary of the Frontenac Inmate Committee in November 1995, circulated this form to a number of his fellow Frontenac inmates and raised a total of $518 towards the payment of the legal fees. These donations were transferred under the authority of the institution to the Inmate Welfare Fund and a cheque in the amount of $518 was issued to the solicitor in partial payment of her fees.

     The legal fees owing to the applicants' solicitor are relatively marginal in comparison with the outstanding cash balance of the Inmate Welfare Fund. The cash balances vary between $10,000 and $50,000 at each of the federal institutions in Ontario.

     In his affidavit, the applicant Michael Wallace, currently Secretary of the Inmate Committee in the Frontenac Institution, stated:

8.      During the time I was at Joyceville Institution, the Committee retained lawyers on several issues regarding the inmate population's welfare and the inmates rights, including but not limited to issues such as urinalysis testing, double bunking and the new telephone system. To the best of my knowledge lawyers retained by the Committee to represent the rights of the inmate population have been paid through the IWF. While on the Committee, I have seen lawyers' accounts being paid through the IWF. To this effect, the first retainer received by our lawyer in the within Application came through the IWF.

9.      After the seven Committees got involved in the present Application, the Committees received verbal notice from their respective administrations that legal services could no longer be paid through the IWF.

10.      The Committees started collecting money from inmates through bulk donations to pay for legal services. We have only been able to pay part of our lawyer's account to date.

11.      In or about November 1995, I was transferred to Frontenac Institution and I have also become involved with the Committee at that Institution.

12.      Inmates incarcerated in federal Institution [sic] who are working, earn between $52.50 and $69.00 biweekly (depending on the level of pay they earn). At Frontenac Institution, the following automatic deductions are made:

$1.00 to the IWF;

$3.25 to the television cable; and

10% of the pay into a savings account.

It is my understanding that similar deductions are made at other Institutions.

13.      The balance of the inmate's pay is distributed into his or her current account. The money in the current account is usually used for buying canteen products, cigarettes, etc. After buying canteen products and cigarettes, inmates usually do not have a lot of money left in their current accounts to contribute for bulk donations.

14.      The majority of the inmate population is interested in pursuing the present Application. Unfortunately, their financial situation does not allow them to pay for our lawyer's account.

15.      I have had several conversation[s] with our lawyer regarding payment of her account for professional services rendered and have been advised that should this account not be paid in full and a retainer for future services given, she will have no other choice but to withdraw from this case. I have also had conversations with other lawyers and no lawyer will represent the interests of the inmate population without a proper retainer.

16.      To the best of my knowledge, the other Committees and inmate population involved in the within Application are facing the same difficulties.

Mr. Wallace was not cross-examined on his affidavit.

     The applicants have filed uncontradicted affidavit evidence that the majority of the inmates supports the application for judicial review concerning the new telephone system and its funding.

     On September 2, 1996, the Chairman and Secretary of the Inmate Committee of Frontenac Institution wrote to its Warden requesting that their Inmate Welfare Fund be used to pay an outstanding account of $300 to the solicitor for the applicants and their share of a retainer for future services. After a meeting between the Chairman of the Inmate Committee and the Chair of Finance of the Frontenac Institution on September 4, 1996, the Warden responded to this request on September 5, 1996 by refusing to approve the payment of these legal fees from the Inmate Welfare Fund and suggesting instead that the Bulk Request to Disburse Funds be used. It is this decision that is the subject matter of this application for judicial review.

COMMISSIONER'S DIRECTIVE NO. 861

     Commissioner's Directive No. 861 ("the Directive") was issued in May 1989 to set out the policy objective and other relevant provisions concerning the Inmate Welfare Fund. It is useful to set out the terms of the Directive:

POLICY OBJECTIVE

1.      To establish and maintain a fund for the purpose of contributing to the inmate's [sic] general welfare within the institution or for recognized charitable purposes outside the institution.

INSTITUTIONAL RESPONSIBILITY

2.      Each institution shall have an Inmate Welfare Fund which shall be administered according to generally accepted accounting and budgetary control principles.

INMATE WELFARE COMMITTEE

3.      The Director shall establish an Inmate Welfare Committee composed of inmates to make recommendations regarding the use of the Inmate Welfare Fund. The implementation of Committee recommendations requires the approval of the Director or his/her delegate.

4.      The Inmate Welfare Committee shall use the fund to:

a.      provide for educational, social, cultural and recreational activities for inmates;

b.      provide amenities for inmates;

c.      grant loans to inmates;

d.      meet costs of inmate publications where these costs exceed the amount received from subscriptions, advertisements and donations; and

e.      make donations to recognized charitable organizations and other recognized charitable causes as approved by the Director or his/her delegate.

REVENUE

5.      Revenues for the Inmate Welfare Fund shall be derived from:

a.      deductions from approved earnings;

b.      canteen profits;

c.      interest on the fund's cash balance;

d.      the receipt of gifts authorized by the Director; and

e.      fund-raising activities carried out by inmates under the Director's authorization.

LOANS

6.      Each institution shall establish procedures for the application for, approval, and repayment of loans from the Inmate Welfare Fund.

7.      Each institution shall establish both the maximum sum which may be borrowed by an individual inmate or a group of inmates, and the maximum sum which may be disbursed in loans from the fund.

8.      Directors may write off loans which have been outstanding for more than one year and which are deemed uncollectible.

     In his memorandum of April 30, 1990, the Commissioner acknowledged the right of an Inmate Committee "to collect monies from inmates in other institutions for the purpose of a common legal action against the Correctional Service of Canada". The English version of the memorandum states:

Questions have been raised in recent months regarding the rights of inmates as groups (e.g. Inmate Committee(s)) to collect monies from inmates in other institutions for the purpose of a common legal action against the Correctional Service of Canada. A recent issue in this regard was the desire expressed by a group of inmates to collect money from inmates across the country to take legal action against the Urinalysis Program.

It is the position of the Correctional Service of Canada that monies from the Inmate Welfare Fund cannot be utilized for the purpose of legal actions. This is reflected in Commissioner's Directive 861. On the other hand, given certain limitations, inmates should have the right to collect money from inmates from other institutions on a voluntary basis for this purpose. In fact, it is appropriate that they have the opportunity to collect money for other "non-legal" issues that they may wish to pursue.

If an inmate or a group of inmates wishes to initiate the collection of funds from other inmates, the first step to be taken would be to identify a person, who must be independent of the Correctional Service of Canada, to administer the fund. In many cases, this person would be a lawyer. The normal procedure, utilizing Form 532 for the collection of monies from inmates in an institution would be followed, and the money collected would be forwarded to the lawyer(s) or other person(s) identified on behalf of the inmates. In those cases where the inmates wish to solicit funds from inmates in other institutions, it would be their responsibility to instruct this person(s) to write directly to the Wardens of the other institutions to make this request. If monies are collected at other institutions, they would be instructed to forward the funds to the person(s) making the request. Finally, it would be the responsibility of the lawyer or other person identified to set up and maintain accounts, and to distribute the monies gathered.

I believe that the process as outlined above will ensure that inmates have reasonable access to solicit funds from inmates in other institutions for legal actions or other reasonable projects. Please ensure that staff in the institutions are made aware of the proper process to follow in this regard, and if inmates make such a request, that the procedures noted above would be implemented.

     In this memorandum, the Commissioner interprets the Directive by asserting that moneys from the Inmate Welfare Fund cannot be utilized for the purpose of funding legal actions.

     Legal counsel for the Correctional Service of Canada ("the Service") relied on the Commissioner's memorandum of April 30, 1990 when she advised a colleague in January 1996 that it was not "legal under CSC policy for court challenges to be funded out of the Inmate Welfare Fund - with or without inmate consent." This legal advice was used to explain the Warden's refusal to authorize the use of the Inmate Welfare Fund for legal fees in this case.

ANALYSIS

     Does the Directive prohibit the utilization of the Inmate Welfare Fund at the Frontenac Institution for the payment of the applicants' solicitor's legal fees in the proceeding against the respondents concerning the new telephone system? This is the principal issue in this judicial review.

     In concluding that the Inmate Welfare Fund could not be used for the purpose of paying legal fees, the Warden relied on the Commissioner's memorandum of April 30, 1990.

     The policy objective of the Inmate Welfare Fund is broad. In the words of the Directive, the fund exists "for the purpose of contributing to the inmate's [sic] general welfare within the institution."

     The respondents acknowledge that moneys collected through the Bulk Request to Disburse Funds program for the application concerning the new telephone system were transferred to the Inmate Welfare Fund. The Warden then authorized the payment of the legal fees from the Fund to the extent of the money collected. There is evidence that on other occasions legal fees had been paid directly from the Inmate Welfare Fund for legal challenges concerning urinalysis testing, double bunking and the new telephone system. The respondents assert that these precedents cannot justify a practice not otherwise authorized by the Directive.

     Counsel for the respondents argues that the use of the word "shall" in paragraph 4 of the Directive necessarily limits the expenditures from the Inmate Welfare Fund to the purposes specifically mentioned in the paragraph. This interpretation of the Directive does not give sufficient importance, in my view, to the policy objective enunciated in paragraph 1. If the Commissioner intended the Directive to mean that in no circumstance could the fund be used for legal fees, a more specific and less ambiguous wording should have been used in paragraphs 1 and 4. I am not satisfied that the wording of the Directive necessarily prohibits the funding of legal actions, particularly in the circumstances of this application.

     This interpretation of the Directive is, in my view, supported by the relevant legislation and regulations. The Directive must be read and implemented within the framework of the Corrections and Conditional Release Act, S.C. 1992, c.20, ("the Act") and its regulations. The relevant provisions of section 4 of the Act state:

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

...

(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;

     Section 96 of the Act provides for the making of regulations:

(w) providing for inmates' access to (i) legal counsel and legal reading materials, (ii) non-legal reading materials, and (iii) a commissioner for taking oaths and affidavits.

     Pursuant to this provision, subsection 97(3) of the Corrections and Conditional Release Regulations, SOR/92-620 ("the Regulations") states:

(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.

     The Act and the Regulations came into force in 1992. The previous corresponding legislation and regulations had no provisions similar to paragraphs (d) and (e) of section 4 and paragraph (w) of section 96 of the Act nor to subsection 97(3) of the Regulations. The Directive of May 1989 and the Commissioner's memorandum of April 30, 1990 were created when the Service had no legislated mandate "to ensure that every inmate has reasonable access to legal counsel".

     In Schemmann v. Canada, [1995] F.C.T. No. 923, Rothstein J. considered subsection 97(3) of the Regulations. The inmate was seeking an order requiring the Service to provide access to computer software. There was no evidence that the plaintiff would be precluded from using his own software. In concluding that this Regulation did not oblige the Service to provide software at its expense, Rothstein J. stated:

The Corrections and Conditional Release Act and Regulations oblige the Defendant to provide inmates at prisons with many services and amenities. One cannot help but be astonished at the extensive rights conferred on inmates by this Act and its Regulations. But that is what Parliament and the government have decided. Be that as it may, the Defendant in this case has enabled the Plaintiff to exercise his rights and has complied with the duties imposed upon it by law.

     A proper reading of the Directive and a proper exercise of the Warden's discretion in authorizing an expenditure from the Inmate Welfare Fund can only be done, in my view, in light of the provisions of the Act and its Regulations. In this case, the request to use the Inmate Welfare Fund - moneys collected from the inmates themselves - must be considered by the Warden within the context of the Service's obligation to ensure that every inmate has reasonable access to legal counsel.

     The assertion by the Commissioner in his memorandum of April 30, 1990 that "monies from the Inmate Welfare Fund cannot be utilized for the purpose of legal actions" is, at the very least, too broad as a blanket statement in light of the current Regulations. Similarly, there is no indication in the memorandum prepared by the Service's legal counsel in January 1996 that any consideration was given to subsection 97(3) of the Regulations in formulating her opinion that the Inmate Welfare Fund could not be used to pay legal fees for this court challenge.

     In this case, the solicitor's fees have been paid to date from the Inmate Welfare Fund. The fees were paid from moneys collected from the inmates either pursuant to paragraph 5 of the Directive or through the Bulk Request to Disburse Funds system.

     The inmate population's financial situation does not allow for additional fundraising for this litigation according to Mr. Wallace. The Bulk Request to Disburse Funds system, in the circumstances of this case, has not enabled the inmates to assure ongoing access to legal counsel for this court challenge. The bulk fundraising system has not been effective in this instance in ensuring reasonable access to legal counsel within the meaning of subsection 97(3) of the Regulations. As a result, the applicants are seeking the use of the inmates' moneys in the Inmate Welfare Fund to pay for the legal services. The hearing in the substantive judicial review is scheduled to proceed shortly.

     Accordingly, I conclude that the Warden erred in law in relying on the Commissioner's interpretation that the Directive prohibited funding of legal actions from the Inmate Welfare Fund and in refusing his approval for the utilization of the Inmate Welfare Fund to pay the legal fees for the court challenge concerning the new telephone system. His refusal was inconsistent with the Service's obligation to afford reasonable access to legal counsel in litigation where a judge of this Court has ordered interlocutory relief on the grounds that the new telephone system might infringe the applicants' Charter rights.

     This application for judicial review is granted. The decision under review is quashed and the Warden is directed to reconsider the recommendation to disburse moneys from the Inmate Welfare Fund for the solicitor's legal fees in a manner not inconsistent with these reasons.

                         "Allan Lutfy"

                                 Judge

Toronto, Ontario

October 24, 1996

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  T-2085-96

STYLE OF CAUSE:              TIMMINS BISSONNETTE and MICHAEL WALLACE of Frontenac Institution located in the County of Frontenac, Province of Ontario

                     - AND -

THE COMMISSIONER OF CORRECTIONS, THE DEPUTY COMMISSIONER FOR ONTARIO and THE WARDEN OF FRONTENAC INSTITUTION

DATE OF HEARING:          SEPTEMBER 18, 1996

PLACE OF HEARING:          OTTAWA, ONTARIO

REASONS FOR ORDER BY:      LUTFY, J.

DATED:                  OCTOBER 24, 1996

APPEARANCES:

                     Ms. Diane M. Magas

                         For the Applicants

                     Mr. Ian D. McCowan

                         For the Respondents

SOLICITORS OF RECORD:

                     Diane M. Magas, Law Office

                     280 Metcalfe Street, Suite 222

                     Ottawa, Ontario

                     K2P 1R7

                     (613) 563-1005

                         For the Applicants

                     Department of Justice

                     239 Wellington Street

                     Ottawa, Ontario

                     K1A 0H8

                      George Thomson

                     Deputy Attorney General

                     of Canada

                         For the Respondents

                     FEDERAL COURT OF CANADA

                     Court No.:      T-2085-96

                     Between:

TIMMINS BISSONNETTE and MICHAEL WALLACE of Frontenac Institution located in the County of Fontenac, Province of Ontario

              Applicants

- AND -

THE COMMISSIONER OF CORRECTIONS, THE DEPUTY COMMISSIONER FOR ONTARIO and THE WARDEN OF FRONTENAC INSTITUTION

              Respondents

                     REASONS FOR ORDER