Date: 20110429
Docket: T-1300-10
Citation: 2011 FC 502
Ottawa, Ontario, April 29, 2011
PRESENT: The Honourable Mr. Justice Harrington
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 ORDER AND ORDER
[1]
Mike
Spidel is a “lifer”. He is acutely aware of his rights, or what he considers
his rights, and is quick to assert them. He is the applicant or plaintiff in 11
matters filed in this Court within the last three years. Some times he is
right, sometimes he is not. In this particular case, although his application
is being dismissed, he is partly right and partly wrong.
[2]
This
dispute began in May 2009 when Mr. Spidel was serving as secretary of the
Inmate Committee at the Ferndale Institution. The inmates, or certainly a
number of them, were unhappy with the administration of a contract the Inmate
Committee had entered into with Correctional Service of Canada in 2005 with
respect to the canteen.
[3]
Both
the president of the committee, Warren McDougall, and Mr. Spidel, drafted Bulletins
which required approval before distribution. Mr. McDougall’s was approved, and
is not to be found in the tribunal record. Mr. Spidel’s was not.
[4]
The
draft Bulletin, which is only one page in length, states that “in 2005 the Ferndale inmates
“bought” the Canteen.” The problem, according to Mr. Spidel, was that they were
unduly restricted in what they could purchase: “we still can’t get protein
powder or simple food stuffs or meats”.
[5]
He
added:
So you see we bought their product,
relieved them of all their costs, a bunch of their time and most of their
responsibilities and got nothing in return. Zilch!!!
[6]
Two
solutions were suggested, one was hiring a lawyer, and another was to throw up the
contract.
[7]
After
the first refusal, the draft then went to the warden who returned it with the
following comments: “”Bought” the Canteen” was circled and the comment “bought
the stock” was added. He concluded: “inaccurate”, “inciteful”, “not approved”.
In reality, it is the warden’s decision which is being reviewed.
[8]
Mr.
Spidel pursued the matter, unsuccessfully, through the second and third
grievance levels and now here by way of judicial review. This grievance, which
is on behalf of the Inmates Committee, spun other grievances which will be
dealt with later on in these reasons. In essence, the grievance is that Mr.
Spidel has been denied the right to express himself freely, a right recognized
and guaranteed in our Constitution.
[9]
Article
2(b) of the Canadian Charter of Rights and Freedoms provides:
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2. Everyone
has the following fundamental freedoms:
[…]
(b) freedom of
thought, belief, opinion and expression, including freedom of the press and
other media of communication;
[…]
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2. Chacun a
les libertés fondamentales suivantes :
…
b) liberté de pensée,
de croyance, d'opinion et d'expression, y compris la liberté de la presse et
des autres moyens de communication;
…
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[10]
This
freedom is contextual. No one has the right to yell “fire” in a crowded theatre
or, for example, in civil law, to make fraudulent or negligent misstatements or
to defame someone, without repercussions.
[11]
In
addition, Charter rights are restricted by article 1 which provides:
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1. The Canadian
Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
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1.
La Charte canadienne des droits et libertés garantit les
droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par
une règle de droit, dans des limites qui soient raisonnables et dont la
justification puisse se démontrer dans le cadre d'une société libre et
démocratique.
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[12]
The
whole premise of the respondent’s position is set out in the Offender
Grievance Response at the Second Level. It reads:
The Inmate Committee Bulletin prepared by
you provided information regarding the Inmate Canteen. Unfortunately, the
Bulletin did not accurately describe the circumstances surrounding the canteen
and the information was not suitable for sharing with others. The Warden asked
that changes be made. You were not denied the opportunity to present a
Bulletin, rather you were asked to word your submission in an appropriate and
accurate manner.
As there is no information to support
that the rights of the Ferndale Institution Inmate Committee were violated,
your grievance is denied.
[13]
There
is no evidence that the warden asked Mr. Spidel to re-draft the Bulletin. The
fact of the matter is, however, as clearly stated by Mr. Spidel throughout the
grievance process, he did resubmit the Bulletin. He deleted the comment
“”bought” the Canteen” and said the inmates “got nothing worthwhile in return”.
He also deleted “Zilch!!!”
[14]
Although
this revised draft Bulletin is in the tribunal record, the respondent is at a
loss to explain why no response thereto was ever given to Mr. Spidel.
Therefore, Mr. Spidel took the position, not unsurprisingly, that freedom of
expression was denied him either because there is no policy that a draft
bulletin may be revised, or that his rights were denied because he was ignored.
This led me to surmise during the hearing that the dispute before me may
actually be moot. Nevertheless, since whatever policy there may be with respect
to revising drafts in order to obtain approval is not written, I consider it
appropriate to deal with the matter.
ISSUES
[15]
The
first issue is whether the refusal to approve Mr. Spidel’s first bulletin
infringed his right of freedom of expression. If so, we must select an
appropriate remedy.
[16]
The
second issue is what is to be done with Mr. Spidel’s revised bulletin. Should
the authorities be ordered to make a decision?
[17]
Finally,
there are a number of points which are essentially procedural. Nevertheless, I
realize they are important to a person in Mr. Spidel’s situation. After his
first draft bulletin was rejected, he filed a separate grievance with respect
to the use of the word “inciteful” by the warden. The first grievance was on
behalf of the Inmate Committee, the second was personal. He wants any reference
to “inciteful” struck from his record, as it may jeopardize his chances to one
day be granted day parole. He characterized both grievances as relating to
charter rights. The authorities reclassified them and joined them as one. They
were then separated and classified as suggested by Mr. Spidel at the second
grievance level, but then again treated as one at the third level.
THE FIRST BULLETIN
[18]
It
is common ground that following the decision of the Supreme Court in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1
SCR 190, the standard of review on findings of fact and discretionary decisions
is that of reasonableness.
[19]
It
is certainly reasonably arguable that the warden was correct in considering the
bulletin to be inaccurate. Mr. Spidel takes the position that inaccuracy should
be considered separately from incitefulness and that he has the right to state
something which may be inaccurate. Although for the purpose of analysis the two
terms have to be considered separately, it is their overall effect which
counts. Something might be inaccurate, but not inciteful, or accurate but inciteful.
[20]
The
warden’s decision that the bulletin was inaccurate is a reasonable one. He may
have been a little picky in objecting to “”bought” the Canteen” rather than
“bought the stock”. The contract certainly makes it clear that it was the
management and property of canteens which was transferred. Nevertheless, the
heading of the memorandum of understanding states “Inmate owned and operated
canteen…”
[21]
The
memorandum of understanding goes on to provide, among other things, that there
would be no changes to the then current Material Management purchasing policies
and regulations. Thus the complaint that the inmates could not purchase protein
powder or other food stuffs does not appear to be attributable to a breach of
contract on the part of the Correctional Service.
[22]
I
suggested to Mr. Spidel that rather than frame this issue as one of freedom of
expression, if the Inmate Committee was of the view that Correctional Service
was in breach of contract, then they should either grieve or sue, as was done
in Frontenac Institution Inmate Committee v. Canada (Corrections Services),
2004 FC 580, [2004] FCJ No 703 (QL).
[23]
Mr.
Spidel informed me that the chair of the Committee, Warren McDougall, did just
that and was unsuccessful through to the third level grievance. He did not seek
judicial review.
[24]
As
to the Bulletin being inciteful, Mr. Spidel considers that he was accused of
calling the inmates to arms. I suggested that “inciteful” is not necessarily a
call for physical violence. The Canadian Oxford Dictionary defines “insight”
as “to urge or stir up” coming from the French “inciter” which in turn comes
from the Latin “citare” meaning to arose. Perhaps a better word could have been
selected. However, in any event, I cannot read the warden’s comment as meaning
that Mr. Spidel was personally inciteful. I read his comment as meaning that
the Bulletin was inciteful.
[25]
In
my opinion, the warden’s determination that the draft bulletin was “inciteful”
was not unreasonable. Prison life is, and must be, tightly controlled. In one
sense, the warden, as the head of Ferndale Institution, may be considered the
publisher, and need not publish what he does not approve. In Robert J. Sharpe and
K. Roach, The Charter of Rights and Freedoms, 4th
edition (Toronto: Irwin Law,
2009), at page 177, dealing with the location of the expression, the authors
say:
For those who lack the resources to place
their message in newspapers or broadcast media, expressing oneself in a public
place may be essential if the message is to find an audience.
In this case, Mr. Spidel lacked the
resources.
[26]
In
my opinion, the warden’s decision not to permit publication of the Bulletin did
not limit Mr. Spidel’s freedom of expression. Surely there is a distinction
between freedom to express one’s thoughts and the freedom to publish. In this
particular case, Mr. Spidel lacked the wherewithal to publish. Mr. Spidel had
no constitutional right to require the institution to publish his thoughts.
[27]
However,
if I am wrong in my analysis, and the decision not to distribute the Bulletin
did limit Mr. Spidel’s freedom of expression, I find that the decision was
justifiable under section 1 of the Charter. The test for deciding whether a
limit is justified was set up by the Supreme Court in R v Oakes, [1986]
1 SCR 103, 26 DLR (4th) 200. The burden falls upon the government to establish
that the action addressed a pressing and substantial objective and that the
limitation was proportional having regard to rational connection, minimal
impairment, and the balancing of effects. The leading case dealing with the
freedom of expression is Irwin Toy Ltd v Québec (Attorney General),
[1989] 1 S.C.R. 927, 58 DLR (4th) 577.
[28]
It
was the warden’s obligation to maintain security at the institution. It was not
unreasonable for him to assume that the publication of the bulletin could well
stir up bad feelings on the part of the inmates. Pursuant to sections 3 and 4
of the Corrections and Conditional Release Act, the correctional system
is to contribute to the maintenance of a just, peaceful and safe society. The
service is to use the least restrictive measures consistent with the protection
of the public, staff members and offenders. Section 4 of the said Act requires
the warden to be responsible for the care, custody and control of all inmates
and the security of the penitentiary. The Regulations go on to provide at
section 96 that the institutional head, or staff member designated by him, may
prohibit the circulation of any publication, believed on reasonable grounds, that
would jeopardize the security of the penitentiary.
[29]
The
initial decision, upheld by the warden, and through the grievance process,
falls well within the range of reasonableness enunciated by the Supreme Court
in Dunsmuir, above.
[30]
Mr.
Spidel also submitted that the decision should be struck down for vagueness. It
is important to know the rationale of a decision in order to determine whether
or not it should be grieved further. Although the language is terse, the
warden’s decision is perfectly clear and capable of understanding. A decision
which is clear is not to be struck down simply on the grounds that it is short.
A recent example is the decision of the Federal Court of Appeal in Attorney
General of Canada and National Parole Board v Franchi, 2011 FCA
136.
[31]
All
of this is on the assumption that, as held at the second grievance level, Mr.
Spidel had the right to resubmit the bulletin, a right which he in fact
exercised, but in this case to no avail. If there is no such policy, then his
right to freedom of expression was infringed. In such case the impairment was
more than minimal, and was not justified. It has not been suggested that the
inmate committee did not have the right to inform the inmates at large that
they had a difference of opinion with the institution as to the interpretation
and application of the Canteen contract, and were assessing the options open to
them to resolve the issue.
THE SECOND BULLETIN
[32]
Although
a decision should have been rendered on the revised bulletin, it is not for
this Court to opine at this stage as to whether or not it is suitable for
publication. In any event, the matter may be moot as Mr. McDougall is said to
have been unsuccessful in grieving the alleged breach of contract. Furthermore,
Mr. Spidel is no longer at the Ferndale Institution.
PROCEDURAL ISSUES
[33]
Mr.
Spidel, who is self-represented, has left no stone unturned. He has pointed out
a number of errors in the process, and brings to mind the following passage
from Mr. Justice Joyal’s decision in Miranda v Canada (Minister of
Employment and Immigration) (1993), 63 FTR 81 (TD), [993] FCJ No 437 (QL).
It is true that artful pleaders can
find any number of errors when dealing with decisions of administrative
tribunals. Yet we must always remind ourselves of what the Supreme Court of
Canada said on a criminal appeal where the grounds for appeal were some 12
errors in the judge's charge to the jury. In rendering judgment, the Court
stated that it had found 18 errors in the judge's charge, but that in the
absence of any miscarriage of justice, the appeal could not succeed.
[34]
I
do not consider it necessary to deal with all of his issues, or to give him
recourse. I am disturbed that it was agreed at the second level that he was
correct in filing separate grievances, one on behalf of the inmates, and one on
a personal basis, only to find that they were in effect joined again. The
reason given is that the other grievance was not before the Commissioner. If
not, it should have been, because it formed part of Mr. Spidel’s submissions.
The issue is not what was before the decision maker, but rather what ought to
have been before him (Tremblay v Canada (Attorney
General),
2005 FC 339, [2005] FCJ No 421 (QL).
[35]
Mr.
Spidel coded the grievances as relating to charter rights which meant they
should have been dealt with on a priority basis. They were re-characterized as
routine, but at the second level again it was held that Mr. Spidel was right.
Nevertheless, his grievances were in fact dealt with on a routine basis. The
delay does not serve to invalidate the decision, but what is the point of
saying one thing and doing another?
[36]
Mr.
Spidel requests that his file be corrected. I was informed during the hearing
that no entry has been made in his file concerning this incident and no charge
was laid against him. Thus there is nothing to correct which would jeopardize
his chances for a day parole. However, I am directing that my order and the
reasons therefore be placed in his file.
[37]
Mr.
Spidel has overreached in the conclusions he seeks. I see no reason why a
remedy in the nature of mandamus or prohibition should issue, or that I should
make a declaration which would serve as a prisoners’ manifesto. I see no need
to grant a remedy (MiningWatch Canada v Canada (Fisheries
and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6).
COSTS
[38]
The
Minister seeks costs in the amount of $2,000 plus disbursements. Mr. Spidel
also seeks costs. Considering that he is self-represented, those costs would be
limited to disbursements. The rule of thumb in cases such as these is that
disbursements other than filing fees be set at $250. The filing fees in this
case are $100. Although Mr. Spidel was unsuccessful, he was forced into this
judicial review because no decision was ever made with respect to the revised
bulletin. I have wide discretion under rule 400 and following of the Federal
Courts Rules and, in the circumstances, I consider it appropriate to award
Mr. Spidel costs of $350.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that
1.
The
application for judicial review is dismissed.
2.
Mr.
Spidel shall be entitled to costs in the amount of $350, all inclusive.
3.
Copy
of this order and reasons shall be placed in Mr. Spidel’s file.
“Sean Harrington”
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