Date:
20100715
Docket:
T-1431-09
Citation:
2010 FC 747
Vancouver, British Columbia, July 15, 2010
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
WARREN MCDOUGALL
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to section 18.1
of the Federal Courts Act, R.S.C. 1985, c. F-7, and Rule 300(a) of the Federal
Courts Rules, SOR/98-106, for
judicial review of a decision by the Senior Deputy
Commissioner of the Correctional Service of Canada (“CSC”) dismissing in part
at the final level a grievance filed by Warren McDougall (“the Applicant”). The
dismissed part of the grievance concerned the validity of the Institutional
Standing Order (“ISO”) 770 issued by the Warden of the Ferndale Institution
(“the Warden”) and the cancellation of two of his visitors’ visiting rights
pursuant to the ISO 770.
BACKGROUND
FACTS
[2]
The Applicant is an inmate at the Ferndale
Institution.
[3]
In the summer of 2008, the Warden issued the ISO
770, in application of a Security Bulletin issued by the Acting Director
General, Security Branch, of CSC and pursuant to a directive of the
Commissioner of the CSC (“the Commissioner”), Commissioner’s Directive 770 (“CD
770”). Pursuant to the Security Bulletin and the ISO 770, no person was to be
granted clearance to visit inmates at more than one institution without an
adequate justification.
[4]
A search of CSC’s database revealed that two of
the Applicant’s visitors appeared on visitors’ lists of inmates at more than
one institution. Therefore, on August 27, 2008, they were sent letters
requesting that they explain in writing which inmates they were visiting, why,
and whether they wished to continue visiting those inmates. The letters stated
that their visiting clearance would be cancelled if no response were to be
received within four weeks.
[5]
The Applicant’s visitors did not respond to these
letters; there is no explanation in the file as to the reason for their failure
to do so. On October 2, 2008, both were sent letters notifying them that their
visiting clearances had been cancelled, and inviting them to contact CSC for
any further questions. They have not done so.
[6]
The Applicant was only informed of these
cancellations on December 23, 2008, and on the same day submitted an Inmate’s
Request concerning them. He was advised that the cancellations were the result
of the ISO 770. The Applicant filed a complaint, and attended a meeting of the
Ferndale Institution’s Visits Review Board (the “Board”) to discuss it. The
Board indicated to him that several visitors had responded to letters similar to
those sent to his visitors and, their explanations having been found
satisfactory, their clearances had been maintained. The Applicant’s complaint
was dismissed. He then filed a grievance, the final denial of which he now
seeks to have judicially reviewed.
Decision under Review
[7]
The Senior Deputy Commissioner advised the
Applicant that the ISO 770 was intended to prevent the introduction of drugs
into the Ferndale Institution, and was part of a national strategy implemented
by CSC. Previous studies indicated that persons who visit more than one inmate
or institution represented an increased risk in that respect. The Commissioner
explained that “[f]or this reason … visitors without adequate justification
(i.e. two (2) family members in different institutions) will not be granted
clearance.” Because of the risk, and in view of the paramount importance of
security considerations, “it is not unreasonable that visitors be required to
provide an adequate justification as to why they wish to visit a particular
offender.”
[8]
The Senior Deputy Commissioner further dismissed
the Applicant’s argument that the ISO 770 only applied to new visitors.
ISSUES
[9]
This application raises the following issues:
1. Is the Applicant’s challenge to ISO 770 justiciable?
2. If so, is the ISO 770 unlawful because
a) it was ultra vires the Warden?
b) it was adopted in breach of the Warden’s duty of fairness?
c) it is ineffective, unnecessary, or unjustified?
3. Was the Senior Deputy Commissioner’s decision
dismissing the Applicant’s grievance reasonable?
ANALYSIS
1. Is the Applicant’s challenge to ISO 770 justiciable?
[10]
This issue is raised by the Respondent, who contends that
this Court cannot review the exercise of discretion by the Commissioner, in
accordance with whose directives the ISO 770 was issued. He takes the
position that, pursuant to the Corrections and Conditional Release
Act, S.C. 1992, c. 20 (CCRA), the Commissioner has a discretion “to take
whatever steps are necessary to ensure the control and management of the CSC.”
The Court should not review the exercise of what is a “purely discretionary
power of the Commissioner and the Warden to implement policies for the
administration and control of the visits … in a federal correctional facility.”
The Court should not make policy or act as a regulatory agency. Parliament has
conferred that role on the Commissioner, who in turn delegated powers to the
Warden. The Court cannot second-guess their exercise of these powers.
[11]
While
it is of course not the role of the Court to make policy in the Commissioner’s
place, the Applicant’s challenge to the ISO 770 concerns not only its wisdom,
but also its lawfulness. In a case such as this, the Court has a duty to verify
that the impugned administrative action is compatible with its enabling
legislation and with the Constitution. As the Supreme Court explained in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, “[b]y virtue of the rule of law principle, all exercises of public
authority must find their source in law. All decision-making powers have
legal limits, derived from the enabling statute itself, the common or civil law
or the Constitution.”
[12]
Thus,
while courts will review exercises of a discretionary or policy-making
authority deferentially (Dunsmuir, ibid., at par. 53), they will
nevertheless apply the strict standard of correctness when reviewing decisions
pertaining to constitutionality and jurisdiction (ibid., at par. 58-59).
In addition, all administrative decision-making must comply with the applicable
duty of fairness and, as Justice Binnie, for the majority of the Supreme Court,
emphatically explained in C.U.P.E. v. Ontario (Minister of Labour), 2003
SCC 29, [2003] 1 S.C.R. 539, “[i]t is for the
courts, not the [executive], to provide the legal answer to procedural fairness
questions. It is only the ultimate exercise of the [executive’s]
discretionary … power” which commands the applicable degree of deference.
2. Is the ISO 770 unlawful?
a) Is the ISO 770 ultra vires the Warden?
[13]
The Applicant submits that the Warden had no
jurisdiction to implement the ISO 770 because, on the one hand, of his failure
to consult inmates and, on the other hand, because of he had no “legal
authority to afford greater or lesser access to visits based on the visitor’s
family status with the prisoner.” He notes that the CCRA does not
distinguish family members from other classes of visitors. Inmates are entitled
to visits by any visitors who would see them, subject only to restrictions on
reasonable security-related grounds.
[14]
The Respondent, for his part, submits that the
Commissioner’s authority to issue Directives is provided by sections 97 and 98
of the CCRA. CD 770 is justified by these provisions. The fact that it
does not mention them is irrelevant. Furthermore, CD 770 does not authorise the
Warden to impose blanket restrictions on visits; on the contrary, it mandates a
case-by-case examination of every proposed visit.
[15]
In turn, by section 3 of the CD 770, the
Commissioner required the Warden to “specify the procedures to be followed and
the conditions to be met with respect to visiting.” Provisions of the CCRA
and the CCRR provide a framework within which the Warden’s discretion is
exercised. The ISO 770 complies with this framework. It furthers the statutory
and regulatory objectives of assisting the inmates’ rehabilitation through
visits while ensuring the security of correctional facilities by allowing the
Ferndale Institution to assess the risk which a potential visitor poses to its
security. In addition, it requires that both the inmate and the visitor be
informed of a decision affecting the visitor’s clearance and allow both to make
representations. Finally, the ISO 770 does not require every visitor to justify
visits, but only those visiting multiple inmates or institutions; therefore, it
is the least restrictive means available to achieve its objectives.
[16]
I will address separately, under the heading of
procedural fairness, the argument with respect to the alleged duty to consult
inmates before implementing the ISO 770. I focus now on the Applicant’s submission
that the ISO 770 is contrary to the CCRA and the CCRR (the
relevant provisions of which are reproduced in full in the Appendix) because it
imposes a blanket prohibition on certain visits. I reject this argument for the
following reasons.
[17]
Paragraph 97(b) of the CCRA authorises
the Commissioner to “make rules … for the matters described in section 4” of
that act. Among those matters are the protection of society (paragraph 4(a))
and the rehabilitation of inmates (paragraph 4(i)). Both these objectives
justify the Commissioner’s efforts to keep penitentiaries drug-free. The CD 770
is part of these efforts. It is also consistent with the rule, set out in
paragraph 71(1) of the CCRA, that “an inmate is entitled to have reasonable
contact, including visits …, 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” (my emphasis).
[18]
As the Respondent points out, section 19 of the
CD 770 specifically provides that “[e]ach visit shall be assessed on a
case-by-case basis. The refusal or suspension of a visit from a specific
individual to a particular inmate shall occur in accordance with the Duty to
Act Fairly.” It does not authorise any blanket restrictions on visits. The ISO
770 is consistent with this rule. It provides that visitors whose clearance may
be in doubt may make representations, explaining why they wish to visit an
inmate; if the explanation is adequate, clearance will be granted or
maintained, as the case may be. Thus, the ISO 770 is consistent with the statutory
and regulatory framework, and the Applicant’s attack on it must fail.
[19]
In his written submissions, the Applicant
further challenged the validity of the ISO 770 alleging that it violated his
rights protected by the Canadian Charter of Rights and Freedoms. However,
not having served the notice of constitutional question required by section 57
of the Federal Courts Act, R.S.C. 1985, c. F-7, the necessity of which
to challenge rules made under the CCRA the Federal Court of Appeal
recently confirmed in Mercier
v. Canada (Attorney General), 2010 FCA 167, he rightly abandoned this issue
at the hearing.
b) Was the ISO 770 adopted in violation of
the Warden’s duty of fairness?
[20]
The Applicant argues that the ISO 770 was issued in
violation of the CSC’s duty to consult prisoners. While inmates are not
entitled to be consulted on decisions relating to security, the implementation
of the ISO 770 “was an attempt to mitigate the potential for security risks; it
was not a security decision per se.”
[21]
Furthermore, the Applicant claims that he was
not informed about this decision or told the reasons justifying it. He adds
that “[t]he threshold for ‘justification’ (i.e. more than one family member in
different institutions) was never disclosed to [him];” nor was the information
upon which the Security Bulletin, which the ISO 770 implemented, was based.
[22]
The Respondent argues that the Warden had no duty
to consult the inmates before implementing the ISO 770, because it relates to
security matters – namely, the smuggling of drugs into the penitentiary – on
which inmates need not be consulted. He acknowledges that there was a delay
before the Applicant was informed of the cancellation of his visitors’
clearances following the implementation of the ISO 770. However, he argues that
it did not in any way prejudice the Applicant, since he was able to complain
and file a grievance to challenge this decision. Furthermore, the Applicant’s
visitors were notified when their visiting clearances were cancelled and
invited to contact the Ferndale Institution.
[23]
I agree with the Respondent. I do not understand
the distinction the Applicant tries to make between decisions taken in order “to mitigate the potential for security risks” and “security decision[s]
per se.” A decision mitigating a security risk
is still a security decision. Section 74 of the CCRA provides that CSC “shall
provide inmates with the opportunity to contribute to [its] decisions … affecting
the inmate population as a whole, or affecting a group within the inmate population,
except decisions relating to security matters” (my emphasis). Therefore
neither Warden nor CSC had any duty to consult inmates about the ISO 770.
[24]
Furthermore, since the inmates had no right to be consulted about the ISO 770,
they had no right to prior notice of its implementation. While it is
unfortunate that a policy affecting an important aspect of the inmates’ lives
was not communicated to them until months after it was adopted, this does not
impact on its validity.
c) Is the ISO 770 unreasonable because it is
ineffective, unnecessary, or unjustified?
[25]
The Applicant further attacks the ISO 770 on a
variety of other grounds. He argues that it may well prove ineffective; that
the Warden has other means of controlling drug smuggling in particular cases
where it appears to be a danger at his disposal, so that there is no
justification for imposing a generalized preventive screening; and that there
is in fact no information on the basis of which the CSC could believe that
persons visiting more than one inmate represent a security risk.
[26]
In my opinion, none of the arguments advanced by
the Applicant would justify this Court’s interference with what, as I explain
above, is the Warden’s legal exercise of validly delegated rule-making authority. Potential
ineffectiveness of administrative action or the possibility that policies other
than those pursued by the administration would prove as good or even better to
attain its objectives are simply not among the grounds of review on which this
Court may intervene in the decision-making process of a federal board or
tribunal.
[27]
This is consistent with the principle that “it
is not for a court to determine the wisdom of delegated legislation or to
assess its validity on the basis of the court’s policy preferences. The
essential question for the court always is: does the statutory grant of
authority permit this particular delegated legislation?” (Jafari v. Canada (Minister of Employment
and Immigration), [1995]
2 F.C. 595 at 602). The Court would err if it were “to determine de novo
whether the [impugned rule] was justified in the circumstances.” (Mercier,
above, at par. 80).
3. Was the Senior Deputy Commissioner’s decision dismissing
the Applicant’s grievance reasonable?
[28]
Having correctly concluded that the issuance of
the ISO 770 was within the Warden’s powers, the Senior Deputy Commissioner
reasonably concluded that the cancellation of the Applicant’s visitors’
clearances was valid. The Applicants’ visitors did not explain why they wanted
to visit him, as they were required to do pursuant to the ISO 770.
[29]
That said, I am concerned by the Senior Deputy
Commissioner’s reference, in his decision rejection the Applicant grievance
against the ISO 770, to “family members in different institutions” as being the
adequate justification for a visitor wishing to visit several inmates or
institutions. The ISO 770 does not specify or limit what justifications may be
adequate. This is consistent with the CCRA, which, as the Applicant
rightly points out, entitles inmates to visits from family members and “friends
and other persons from outside the penitentiary.” To the extent that the Warden
or the visiting committee would refuse to recognise reasons other than a family
relationship as being adequate, they would be fettering their discretion in a
manner inconsistent with the CCRA and the CD 770.
[30]
Nevertheless, the record does not indicate that
this happened in the present case. The Applicant’s visitors failed to provide any
justification for wishing to visit him. They were not denied clearance to visit
him because they were not the Applicant’s family members, but because they did
not give any reason whatsoever.
CONCLUSION
[31]
The ISO 770 is not invalid. It was not adopted
in violation of any rules of procedural fairness; it is not ultra vires
the Warden; and its wisdom or lack thereof is not a matter for this Court’s
consideration. The Senior Deputy Commissioner’s dismissal of the Applicant’s
grievance was reasonable. For these reasons,
the application for judicial review of the decision is dismissed, without
costs.
JUDGMENT
THIS COURT ORDERS that the application for judicial review of the decision be dismissed,
without costs.
“Danièle Tremblay-Lamer”
APPENDIX
Relevant legislative provisions
Corrections and
Conditional Release Act, S.C. 1992, c. 20
|
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;
…
(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;
…
|
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;
…
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;
…
|
|
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.
…
|
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.
…
|
|
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.
|
|
97. Subject to
this Part and the regulations, the Commissioner may make rules
…
(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 :
…
b) les questions énumérées à l’article 4;
c) toute autre mesure d’application de cette
partie et des règlements.
|
|
98. (1) The Commissioner may
designate as Commissioner’s Directives any or all rules made under section
97.
…
|
98. (1) Les
règles établies en application de l’article 97 peuvent faire l’objet de
directives du commissaire.
…
|
Corrections and
Conditional Release Regulations,
SOR/92-620
|
91. (1) Subject to section 93, the institutional
head or a staff member designated by the institutional head may authorize the
refusal or suspension of a visit to an inmate where the institutional head or
staff member believes on reasonable grounds
(a) that, during the course of the visit, the inmate or visitor
would
(i) jeopardize the security of the penitentiary or the safety of any
person, or
(ii) plan or commit a criminal offence; and
(b) that restrictions on the manner in which the visit takes
place would not be adequate to control the risk.
(2) Where
a refusal or suspension is authorized under subsection (1),
(a) the refusal or suspension may continue for as long as the
risk referred to in that subsection continues; and
(b) the
institutional head or staff member shall promptly inform the inmate and the
visitor of the reasons for the refusal or suspension and shall give the
inmate and the visitor an opportunity to make representations with respect
thereto.
|
91. (1) Sous réserve de l'article 93, le directeur
du pénitencier ou l'agent désigné par lui peut autoriser l'interdiction ou la
suspension d'une visite au détenu lorsqu'il a des motifs raisonnables de
croire :
a) d'une
part, que le détenu ou le visiteur risque, au cours de la visite :
(i) soit de compromettre la sécurité du pénitencier ou de quiconque,
(ii) soit de préparer ou de commettre un acte criminel;
b) d'autre
part, que l'imposition de restrictions à la visite ne permettrait pas
d'enrayer le risque.
(2) Lorsque
l'interdiction ou la suspension a été autorisée en vertu du paragraphe
(1) :
a) elle
reste en vigueur tant que subsiste le risque visé à ce paragraphe;
b) le directeur
du pénitencier ou l'agent doit informer promptement le détenu et le visiteur
des motifs de cette mesure et leur fournir la possibilité de présenter leurs
observations à ce sujet.
|
Commissioner’s Directive 770 “Visiting”
|
3. The Institutional Head shall:
- ensure that general visiting is available
to all inmates;
- specify the procedures to be followed and
the conditions to be met with respect to visiting;
- ensure that procedures and conditions
pertaining to visiting are communicated to all inmates, visitors and
staff;
- ensure that visits are normally scheduled
at least twenty-four (24) hours in advance.
|
3. Le directeur de l'établissement doit :
- veiller à ce que tous les détenus aient la
possibilité de recevoir des visites ordinaires;
- préciser les procédures à suivre
relativement aux visites ainsi que les conditions à remplir;
- s'assurer que les détenus, les visiteurs
et les employés sont tous informés des procédures et des conditions
ayant trait aux visites;
- s'assurer que les visites sont normalement
prévues au moins vingt-quatre (24) heures à l'avance.
|
|
4. All inmates' visitors shall complete an
application and information form for the purpose of security screening. A
verification of the Canadian Police Information Centre files shall then be
conducted and subsequently updated at least every two (2) years for all
active visitors. On the basis of this security check and following a review
of possible restrictions, the Institutional Head shall decide whether or not
visitor clearance will be granted. Under special circumstances, at the
discretion of the Institutional Head, the security screening may be waived.
|
4. Toute personne désirant rendre visite à
un détenu doit remplir une formule de demande d'admission et de
renseignements aux fins du contrôle de sécurité. Une vérification des
fichiers du Centre d'information de la police canadienne doit être menée et,
par la suite, une mise à jour doit être effectuée au moins tous les deux (2)
ans pour les visiteurs actifs. Compte tenu de cette vérification et à la
suite d'un examen des restrictions possibles, le directeur de l'établissement
doit déterminer si l'autorisation de visite sera accordée. Dans des
circonstances particulières, le directeur peut décider de dispenser le
visiteur du contrôle de sécurité.
|
|
19. Each visit shall be assessed on a
case-by-case basis. The refusal or suspension of a visit from a specific
individual to a particular inmate shall occur in accordance with the Duty to
Act Fairly. The refusal or suspension of a visit from a specific individual
shall continue only for as long as the risk which justified the refusal or
suspension of the visit continues. The reassessment of the risk shall be done
not less than once every six (6) months and the result and the decision shall
be forwarded in writing to the inmate within fourteen (14) days.
|
19. Chaque visite doit faire l'objet d'une
évaluation distincte. L'interdiction ou la suspension des droits de visite
d'un individu en particulier à un détenu ne peut se faire que dans le respect
du devoir d'agir équitablement et ne reste en vigueur que tant que subsiste
le risque ayant justifié l'interdiction ou la suspension de ce droit. Une
réévaluation du risque devra être effectuée au moins tous les six (6) mois.
Le résultat ainsi que la décision devront être communiqués au détenu par
écrit dans les quatorze (14) jours.
|
Ferndale Institution Standing Order 770 “Inmate Visits”
6. The Visits Board shall review applications of all persons
who wish to enter the institution to visit inmates.
7. A security screening for any new visitors shall include a
verification of any other inmate the visitor may be visiting. The following
procedures will be used to determine if any new applicants are on another
inmate’s visiting list:
…
d) if the visitor is listed as
being on another inmate’s visiting list, they will be sent a letter requesting
to know why they are applying to visit this particular inmate at Ferndale
Institution;
e) the explanation received by
V&C will be discussed at a Visits Board …
f) if the explanation is viable,
the process will continue …
g) if the explanation is not
viable, the visitor will be notified via letter … The inmate shall also receive
notice that the visitor was denied …
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