Docket:
T-150-11
Citation:
2012 FC 54
Ottawa, Ontario, January 17, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MICHAEL AARON SPIDEL
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Applicant
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and
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CANADA (ATTORNEY GENERAL)
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr.
Michael Spidel challenges a policy relating to family visits at Ferndale
Institution, where he used to be incarcerated (he was later transferred to the Mission
Institution and then to Kwìkwèxwelhp Healing Lodge). He claims he was once able
to have one-on-one visits with his minor son but Ferndale changed its policy in
2010. The policy now requires that his common-law spouse be solely responsible
for supervising their son at all times during visits.
[2]
Mr.
Spidel complained about the policy change, as well as its application to him
personally. His grievances relating to the policy were dismissed at all levels.
He argues that the latest decision by the Commissioner of the Correctional
Service of Canada is unreasonable and incomplete. He asks me to overturn it and
compel the Commissioner to consider his grievance in full.
[3]
I
cannot conclude that the Commissioner’s decision was unreasonable or
incomplete. The Commissioner reasonably concluded that Ferndale’s policy on
visits was justifiable and consistent with national policies and legislation. I
must, therefore, dismiss this application for judicial review.
[4]
There
are two issues:
1. Is this
proceeding moot since Mr. Spidel has been transferred?
2. Was the
Commissioner’s decision unreasonable?
II. Factual Background
[5]
In
2010, Mr. Spidel complained that Ferndale had changed its policy on visits to
prevent inmates from supervising their children in the absence of the custodial
parent. The change was expressed in an amendment to the Inmate Handbook.
[6]
Prior
to 2010, the Handbook stated:
Parental supervision is the
responsibility of both parents. The inmate is encouraged to cultivate a
personal individual relationship and supervision of their child while
recognizing that they are still responsible for the child’s conduct, care and
safety.
[7]
In
2010, the Handbook was revised to state:
At all times, visitors are
strictly responsible for the safety, care and good conduct of children who
accompany them for visits. Children cannot be left unattended at any time or in
the care of another visitor or inmate.
[8]
Mr.
Spidel’s complaint was rejected on the grounds that the change to the Inmate
Handbook reflected existing policy, not a change in the rules. Visiting parents
had always been required to sign a child safety waiver form acknowledging their
responsibility for the child at all times while at Ferndale.
[9]
Mr.
Spidel presented a first-level grievance asking that the alleged policy change
be rescinded. He proposed that inmates be given the option of signing the waiver
forms themselves, or that the custodial parent give written consent permitting
an inmate to supervise his child. His grievance was denied based on the fact
that visiting parents had always had primary responsibility for supervising
visiting children. Further, the policy did not affect the ability of inmates to
supervise and interact with their children.
[10]
Mr.
Spidel launched a second-level grievance, which was again denied. At this
point, the first grievance was combined with a second. The first contested the
alleged policy change on the grounds of inmates’ parental rights generally; the
second related to his personal right to have private family visits alone with
his son. The second-level decision-maker again concluded that the policy
regarding the supervision of children had not changed, although the wording in
the Inmate Handbook had been amended to clarify the existing policy. Regarding Mr.
Spidel’s personal situation, the decision-maker found that there was not enough
information to establish that the visits would be safe for all parties, or to
determine whether the child would have any concerns about this type of visit.
[11]
Mr.
Spidel grieved again at the third level of the process. He argued that his two
grievances should not have been combined at the second level and that the
Inmate Handbook had been altered to limit the ability of inmates to supervise their
children. He also argued that he had addressed all concerns about having
private visits with his son, and had been improperly turned down. Mr. Spidel’s
grievances relating to the combining of the two complaints and the visitation
policy were again denied, this time by the Commissioner. This is the decision
under review. In a separate decision, his grievance relating to private visits
with his son was upheld in part.
III. The Commissioner’s
Decision
[12]
Regarding
the combination of the two grievances, the Commissioner relied on
Commissioner’s Directive (CD) 081 “Offender Complaints and Grievances”, which
provides that: “When a grievor submits two or more complaints or grievances in
reference to a similar issue, the decision maker may choose to address all of
the issues in one response” (para 24). (See Annex for references.)
[13]
The
Commissioner found that there was a common theme underlying Mr. Spidel’s two
grievances and that the responses at the second level were complete and clear.
Accordingly, this part of his grievance was denied.
[14]
Regarding
the policy on visits, the Commissioner referred to the relevant passage in the
Inmate Handbook:
At all times, visitors are
strictly responsible for the safety, care and good conduct of children who
accompany them for visits. Children cannot be left unattended at any time or in
the care of another visitor or inmate.
[15]
The
Commissioner noted that s 71(1) of the Corrections and Conditional Release
Act, SC 1992, c 20 states that inmates are entitled to have reasonable
visits with family members, subject to reasonable limits based on security or
safety concerns. The institutional head is responsible for safety and security
(Correctional and Conditional Release Regulations, SOR/92-620, s 4).
[16]
At
Ferndale, staff regard minor children as dependents who should be accompanied
by the visiting parent at all times. If an inmate is alone with a child, the
visitor cannot be considered to be supervising that child. The Commissioner
referred to the waiver the visiting parent is required to sign, which
acknowledged the visitor’s responsibility for the child at all times while at Ferndale. This has always been the policy at Ferndale. The wording of the Inmate Handbook
had merely been revised to reflect that policy. The institutional head had the
authority to make that change according to Commissioner’s Directive 770 (para
3(b)).
[17]
In
his grievances, Mr. Spidel had proposed alternative practices that could be
implemented regarding child supervision. Specifically, he had requested that
inmates be permitted to complete waiver forms or that visiting custodial
parents be permitted to consent to sole supervision of a child by an inmate.
[18]
The
Commissioner declined to comment on the merits of these proposals, noting that
the purpose of the internal grievance process was to ensure that policy and
legislation had been adhered to; its purpose was not to debate the merits of the
policy.
[19]
In
a separate set of reasons, the Commissioner addressed Mr. Spidel’s personal
grievance. He found that the additional information Mr. Spidel had provided
through counsel (i.e., an affidavit from his spouse consenting to his
sole supervision of their son, a copy of their custody agreement, and a court
order giving the parents joint custody) had not been previously considered.
However, in upholding this part of Mr. Spidel’s grievance, the Commissioner
noted that, since he was now residing elsewhere, he would have to make a fresh
request for visits without supervision to the institutional head there.
IV. Issue One - Is this
proceeding moot since Mr. Spidel has been transferred?
[20]
The
respondent submits that this proceeding is moot as it relates to a policy at Ferndale, where Mr. Spidel no longer resides. In the circumstances, I do not agree.
[21]
First,
this argument was made at a late hour, giving Mr. Spidel little opportunity to
respond to it.
[22]
Second,
the issue raised by Mr. Spidel is not unique to Ferndale. Indeed, the
Commissioner noted that Ferndale’s policy was consistent with national
standards. Therefore, Mr. Spidel’s transfer does not settle the controversy
before the Court.
V. Issue Two - Was the
Commissioner’s Decision Unreasonable?
[23]
Mr.
Spidel argues that the Commissioner should not have concluded that his two
grievances could be addressed together. They dealt with distinct issues and
should have been kept entirely separate. I disagree.
[24]
Both
grievances obviously arose from the same policy. They dealt with related issues
and, therefore, could be combined according to CD 081, above. I note that the Commissioner
actually answered the two grievances separately, but this does not, in itself,
suggest that any error had been made in combining them.
[25]
Mr.
Spidel adamantly disputes the Commissioner’s assertion that the Inmate Handbook
was amended to reflect existing policy. Further, he argues that the policy
conflicts with the general proposition that inmates retain all rights and
privileges enjoyed by Canadians as a whole, except those that are specifically
limited as a consequence of incarceration. Inmates who are parents, therefore,
enjoy all their parental rights except those that must necessarily be curtailed
as a result of their imprisonment. Speaking of his personal situation, Mr.
Spidel submits that the fact of his incarceration, in itself, does not require
that his time alone with his son be extinguished. His spouse favours
continuation of his private visits with his son and is willing to sign a waiver
to that effect. Staff at Ferndale regarded him as an ideal candidate for these
kinds of visits.
[26]
There
is much force to Mr. Spidel’s submissions. From the record, it appears that he and
other inmates were allowed to have private visits with their children up until
2010 even though the official policy, as reflected in the waiver signed by
visiting parents, was to the contrary. So, while there may not have been a
change in policy, there was a change in practice that adversely affected inmate
parents. Exceptions to the strict policy seem to have been foreclosed at a
certain point.
[27]
Further,
at the level of principle, Mr. Spidel’s submissions are compelling. Correctly,
he points out that prisoners relinquish only those rights and privileges that
are necessarily incidental to their incarceration. Obviously, as Mr. Spidel
accepts, some parental rights shrink as a consequence of imprisonment. He has
no expectation that he should have all the access to his son that he would have
outside prison. But why deny him precious time alone with his son that will
nourish the father-son bond, especially when his spouse and the institutional
staff support it?
[28]
In
that vein, Mr. Spidel asserts that the Commissioner should have considered his
alternative proposals. Further, the Commissioner should have decided the merits
of the policy, not simply whether the institutional head had the authority to
put it in place. The purpose of a grievance is not simply to determine whether
a decision was lawful, but to ensure that there has been a true resolution of
the inmate’s concern.
[29]
Mr.
Spidel’s alternative suggestions certainly merited some consideration. However,
looking at the overall context, specifically, the two separate grievances, I am
satisfied that Mr. Spidel’s suggestions would be fully considered in respect of
his personal circumstances. Those suggestions would not necessarily be
appropriate for all inmates at Ferndale. It was not unreasonable, therefore,
for the Commissioner to deal with the validity of the policy itself, leaving
the question whether there were appropriate alternatives in individual cases such
as Mr. Spidel’s to a separate inquiry.
[30]
Further,
while Mr. Spidel correctly points out that the Commissioner had a duty to carry
out a de novo review of his grievance, I do not accept that the
Commissioner was obliged to decide whether the institutional head at Ferndale was correct in imposing the visitation policy. The institutional head is
responsible for safety and security, and has the authority to make rules regarding
visits. The Commissioner’s role in reviewing a grievance relating to a decision
of an institutional head is to ensure that the latter was acting within his or
her authority and that the decision does not conflict with the principles and
policies laid down in legislation, regulations or other enactments. That is
what the Commissioner did here.
[31]
Therefore,
I cannot see anything unreasonable about the Commissioner’s conclusion that the
rule relating to sole supervision of children by inmates (whether it was new or
newly-enforced) was validly established in the interests of safety and
security.
[32]
This
is particularly so given that the Commissioner seems to have accepted that
there could be exceptions to the policy where safety and security concerns
could be otherwise met. Mr. Spidel has been given an opportunity to make the
case for private visits with his son.
[32]
[33]
Accordingly,
I cannot see anything unreasonable in the Commissioner’s decision. It was
justified, transparent and intelligible, and fell within the range of
defensible outcomes based on the facts and the law.
VI. Conclusion and
Disposition
[34]
I
cannot conclude that the Commissioner’s decision was unreasonable. I must,
therefore, dismiss this application. I note that Mr. Spidel’s application
raised an issue of general concern to inmates at Ferndale and, no doubt,
elsewhere. Given the public interest aspect of the application, I decline to
make an order as to costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
There
is no order as to costs.
“James
W. O’Reilly”
Annex
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Corrections
and Conditional Release Act, SC 1992, c 20
Principles
that guide the Service
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.
Contacts
and visits
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.
Correctional
Service Canada -- Commissioner’s Directive (CD) 081 “Offender Complaints and
Grievances”, 2011, Nov. 29
Combining
Complaints or Grievances
24.
When a grievor submits two or more complaints or grievances in reference to a
similar issue, the decision maker may choose to address all of the issues in
one response. When this is done, it is necessary to identify each of the
complaints and grievances being addressed in the response.
Correctional
Service Canada -- Commissioner’s Directive (CD) 770 “Visiting”, 2008, Aug. 14
General
Visiting
3. The Institutional
Head shall:
[…]
(b) specify the
procedures to be followed and the conditions to be met with respect to
visiting;
Correctional
and Conditional Release Regulations, SOR/92-620
Duties
4. An institutional head is
responsible, under the direction of the Commissioner, for
(a)
the care, custody and control of all inmates in the penitentiary;
(b)
the management, organization and security of the penitentiary; and
(c)
the direction and work environment of staff members. 4
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Loi
sur le système correctionnel et la mise en liberté sous condition, LC 1992, ch 20
Principes
de fonctionnement
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 dont 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.
Rapports
avec l’extérieur
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.
Service
Correctionnel Canada – Directive du Commissaire (DC) 081 « Plaintes et
griefs des délinquants », 29 nov. 2011
Plaintes
ou griefs sur des questions de même nature
24. Si
un plaignant présente deux ou plusieurs plaintes ou griefs portant sur des
questions de nature similaire, le décideur peut choisir de traiter toutes les
questions dans une seule réponse. Le cas échéant, il doit indiquer chacune
des plaintes et chacun des griefs sur lesquels porte sa réponse.
Service
Correctionnel Canada – Directive du Commissaire (DC) 770 « Visites »,
14 août 2008
Visites
ordinaires
3.
Le directeur de l'établissement doit :
…
b) préciser les procédures à
suivre relativement aux visites ainsi que les conditions à remplir;
Règlement
sur le système correctionnel et la mise en liberté sous condition, DORS/92-620
Fonctions
4.
Sous l'autorité du commissaire, le directeur du pénitencier, est responsable
de :
a) la prise en charge, la garde
et la surveillance de tous les détenus du pénitencier;
b) la gestion, l'organisation et
la sécurité du pénitencier;
c) la direction des agents et
leur milieu de travail.
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