Date: 20070226
Docket: T-904-06
Citation: 2007 FC 219
Ottawa, Ontario, February 26,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
BRIAN DEARNLEY on his own
behalf and
on behalf of
all the aboriginal inmates incarcerated at Warkworth Institution
Applicants
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Several
times a year, prisoners at Warkworth Institution organize “family reintegration
days”. Family reintegration days provide prisoners with an opportunity to
invite family and friends to the institution for a day of festivities. In
addition to having the opportunity to visit with friends or family members,
those attending family reintegration days are also provided with food,
activities and games.
[2]
Family
reintegration days have been described as being akin to a company picnic or
community barbecue, without the alcohol.
[3]
For
many years, inmates at Warkworth were able to pay for their own and their
guests’ attendance at family reintegration days out of their institutional
savings accounts. That changed, however, in 2006, when inmates were advised
that from that point forward, payment would have to be made out of their
current accounts.
[4]
Brian
Dearnley is the Chairman of the Inmate Committee at Warkworth Institution. By
this application, he seeks judicial review of this decision, asserting that the
Commissioner of the Correctional Service of Canada lacked the jurisdiction to
prevent inmates from using money in their savings account to pay for attendance
at family reintegration days.
[5]
Mr.
Dearnley also asserts that in prohibiting inmates from paying for attendance at
family reintegration days out of their saving accounts, the Commissioner failed
to use the least restrictive measures available, contrary to the provisions of
subsection 4(d) of the Corrections and Conditional Release Act (the “CCRA”).
Legislative Regime
[6]
In
order to understand the issues raised by this case, it is first necessary to
review the legislation and policies governing the administration of inmates’
bank accounts within the federal correctional system.
[7]
The
starting point for this review is subsection 96(q) of the CCRA, which
authorizes the Governor in Council to make regulations providing for inmates’
moneys to be held in trust accounts. Subsection 97(4) of the Act allows the
Commissioner to make rules for carrying out the purposes and provisions of the
relevant provisions of the Act.
[8]
Section
111 of the Corrections and Condition Release Regulations provides that:
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111.
(1) The Service shall ensure that all
moneys that accompany an inmate when the inmate is admitted into a
penitentiary and all moneys that are received on the inmate's behalf while
the inmate is in custody are deposited to
the inmate's credit in a trust
fund, which fund shall be known as the Inmate Trust Fund.
(2) The Inmate Trust Fund shall
comprise a current account and a savings account in respect of each inmate.
(3) No moneys standing to
the credit of an inmate's savings account in the Inmate Trust Fund shall be
paid out of that account if the balance of the account is lower than the
amount provided for in Commissioner's Directives.
(4) No moneys in the Inmate Trust Fund standing to the
credit of an inmate shall, except where a family relationship exists, be
transferred to the credit of another inmate.
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111. (1) Le Service doit veiller à ce que l'argent que possède le
détenu à son admission au pénitencier et les sommes reçues par lui pendant
son incarcération soient déposés à son crédit dans un fonds de fiducie, connu
sous le nom de
Fonds de
fiducie des détenus.
(2) Le Fonds
de fiducie des détenus doit comprendre un compte courant et un compte
d'épargne pour chaque détenu.
(3) Aucune
somme inscrite au crédit du détenu dans un compte d'épargne du Fonds de
fiducie des détenus ne peut être prélevée du compte si le solde de celui-ci
est inférieur au montant fixé dans les Directives du commissaire.
(4) Aucune
somme inscrite au crédit du détenu dans un compte du Fonds de fiducie des
détenus ne peut être virée au compte d'un autre détenu, sauf s'il existe un
lien de parenté entre ces deux détenus.
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[9]
Also
of relevance to this proceeding is Commissioner’s Directive 860, first
introduced in 1998, which is entitled “Inmate[s’] Money”. The introductory
paragraphs of the Commissioner’s Directive set out the policy rationale
underlying the Directive, which is, amongst other things:
1. To encourage inmates to
budget so that funds are available
for authorized expenses
and for their release.
2. To control the flow of money
in institutions to ensure the
safety of persons and
the security of the penitentiary.
[10]
Paragraphs
13 and 14 of the Directive provide that 90% of the income received by inmates
from their employment within the institution is to be deposited in the inmate’s
current account, to a maximum of $69 every two weeks. The remaining 10% is to
be deposited in the inmate’s savings account.
[11]
In
accordance with paragraph 16 of the Commissioner’s Directive, all other moneys
brought into the institution by the inmate, or received by the inmate from
outside sources during his or her incarceration are to be deposited into the
inmate’s savings account.
[12]
Withdrawals
from inmates’ accounts are governed by paragraphs 19 to 26 of the
Commissioner’s Directive. Of particular note is paragraph 19, which permits
withdrawals from inmates’ current accounts for “family assistance” and
“community celebrations”, amongst other things.
[13]
Transfers
of funds from an inmate’s savings account into the inmate’s current account are
permitted, provided that such transfers support either the inmate’s
correctional plan, or constructive and legitimate inmate activities. However,
such transfers may not exceed $500 in total, and cannot occur on more than four
separate occasions during each fiscal year.
[14]
However,
paragraphs 22 and 23 provide for the withdrawal of funds over and above the
$500 limit in certain exceptional circumstances. These provisions state that:
22. Withdrawals above the $500 limit
for family related reasons shall be based on a case by case review and be
consistent with the Mission Document. The Institutional Head or delegate is
authorized to determine the amount of such withdrawals. These requests are
subject to reasonable verification to ensure that the funds are used for the
stated purpose.
23. The Institutional Head or delegate
may authorize, on a case by case basis, requests for withdrawals above the $500
limit to pay for legal fees and related costs, private family visits,
correspondence and post-secondary courses and related materials, and smoking
cessation products if authorized by Health Services. Requests are subject to
reasonable verification to ensure that the funds are used for the stated
purpose.
[15]
According
to the affidavit material filed by the respondent, these provisions were
included in the Directive to allow inmates to assist their families in covering
urgent or necessary costs arising while inmates are incarcerated.
[16]
With
this understanding of the legislation and policies governing the administration
of inmates’ bank accounts, I turn now to review the facts giving rise to this
application for judicial review.
Background
[17]
Family
reintegration days organized and funded by inmates are held at correctional
facilities across Canada on a regular basis. At
Warkworth Institution, the Inmate Committee typically organizes three such
events each year.
[18]
Inmates
and guests are charged a small fee to attend family reintegration days at
Warkworth. The record contains an example of the fee structure for such an
event, and indicates that adults would be charged $10 to attend, older children
are charged $7.50 each, with a ticket for a young child costing $5.00.
[19]
For
many years, inmates at Warkworth Institution were permitted to pay for these
tickets with money from their savings accounts. However, in May of 2005,
Warkworth underwent an audit by the Ontario Regional Headquarters of the
Correctional Service of Canada, which determined that Warkworth administration
had misinterpreted paragraph 22 of the Commissioner’s Directive No. 860.
[20]
According
to the Ontario Regional Headquarters, the administration at Warkworth had
erroneously interpreted the phrase “family related matters”, as the phrase was
used in paragraph 22 of Commissioner’s Directive 860, to include inmate-organized
events such as family reintegration days, with the result that payment for such
events was being permitted out of inmates’ savings accounts.
[21]
Warkworth
Institution was evidently alone in its interpretation of the Commissioner’s
Directive, as inmates at all of the other federal institutions across Canada were required to
purchase tickets for family reintegration days with monies taken out of their
current accounts.
[22]
After
an exchange of e-mails between the auditors and CSC’s National Headquarters, the
administration at Warkworth was directed to cease the practice of allowing
inmates to pay for attendance at family reintegration days out of their savings
accounts. It is this direction, and its subsequent implementation at Warkworth
Institution, that is the decision under review in this case.
[23]
It
appears that there was some confusion in implementing this change of policy at
Warkworth. Although the institution was informed of CSC’s audit results in May
2005, the change in policy was not implemented until after the June 24, 2006
Family Integration Day. Because there had been some confusion on the part of
inmates and staff within the Institution with respect to the apparent change in
policy, implementation of the change in policy was delayed to give inmates a
reasonable opportunity to budget for future events.
[24]
It
also bears noting that the decision to allow inmates to pay for the June 24,
2006 Family Integration Day out of their savings accounts was made after Mr.
Dearnley filed a motion for an interlocutory injunction enjoining the
Commissioner of Correctional Services from disallowing the use of funds in
inmates’ savings accounts to purchase tickets for family reintegration days.
[25]
By
order dated July 18, 2006, Justice Russell dismissed Mr. Dearnley’s motion.
Although Justice Russell was satisfied that Mr. Dearnley had raised a serious
issue with respect to the change in policy, he was not persuaded that the
potential inability of certain inmates to attend family reintegration days
between the time that the motion was heard and the hearing of the application
for judicial review itself would amount to irreparable harm.
[26]
In
the meantime, on May 31, 2006, Mr. Dearnley filed this application for judicial
review of the decision requiring that inmates pay for attendance at future
family reintegration days out of their current accounts.
[27]
No
issue has been taken by the respondent either with respect to the timeliness of
Mr. Dearnley’s application, or with respect to his failure to access the
internal grievance process.
Issues
[28]
Mr.
Dearnley has identified the issue raised by this application for judicial
review as being whether Commissioner’s Directive 860 confers jurisdiction on
the Commissioner of Correctional Services to limit inmates’ access to their
savings for legitimate purposes.
[29]
Although
Mr. Dearnley’s Notice of Application also asserts that the actions of the
Commissioner violated several sections of the Canadian Charter of Rights and
Freedoms, this argument was not addressed by Mr. Dearnley in his memorandum
of fact and law, and was expressly abandoned at the commencement of the
hearing.
Standard of Review
[30]
Relying
on the decision of this Court in Bissonnette v. Commissioner of Corrections
(1996), 122 F.T.R. 166, Mr. Dearnley submits that the issue on this application
raises a question of law, and as such, should be reviewed against the standard
of correctness.
[31]
In
contrast, the Attorney General suggests that Commissioner’s Directives are
policy documents whose interpretation and application involve factual
questions, which are reviewable against the standard of patent
unreasonableness.
[32]
Although
Mr. Dearnley characterizes the issue raised by his application for judicial
review as jurisdictional in nature, it is quite clear that the applicable
provisions of the Corrections and Condition Release Act and Regulations
authorize the Commissioner of Correctional Services to make rules with respect
to inmates’ access to the moneys held in their institutional bank accounts.
What is really at the heart of Mr. Dearnley’s application for judicial review
is the CSC’s interpretation of Commissioner’s Directive 860 as it relates to
the facts of this case.
[33]
Commissioner’s
Directives are not “laws” as such, but rather are statements of administrative
policy: See Martineau v. Matsqui Institution, [1978] 1 S.C.R. 118, and Hunter
v. Canada (Commissioner of
Corrections),
[1997] F.C.J. No. 959.
[34]
It
is clear that decisions relating to the interpretation of Commissioner’s
Directives are entitled to some deference: see, for example, Schaefler v. Canada (Solicitor General), 2004 FC 517. It is not
necessary, however, for me to decide whether the decision should be reviewed
against the standard of reasonableness or that of patent unreasonableness, as I
am of the view that the interpretation of Commissioner’s Directive 860 in issue
here was one that was reasonable.
Analysis
[35]
Mr.
Dearnley concedes that the stated goals of Commissioner’s Directive 860 - that
is, to encourage inmates to budget funds so that they have access to resources
on their release from prison, and to control the flow of money into the
penitentiary - are legitimate policy objectives. However, he says that a
majority of inmates will not be able to participate in Family Reintegration
Days unless they can pay for the tickets out of their savings accounts. As such, Mr.
Dearnley says, the restrictions are excessive.
[36]
In
this regard, Mr. Dearnley points to the fact that the amount of money that an
inmate is entitled to have deposited into his institutional current account is
limited to $69 every two weeks. Given that the vast majority of inmates are
smokers, Mr. Dearnley says that inmates simply do not have the resources
necessary to pay for attendance at family reintegration days out of the moneys
held in their current accounts
[37]
This
is so, Mr. Dearnley says, even taking into account the fact that inmates can
transfer up to $500 from their savings account into their current account each
year.
[38]
Mr.
Dearnley acknowledges that paragraph 19 of Commissioner’s Directive 860
specifically notes that withdrawals may be made from inmates’ current accounts
for family assistance and community celebrations, amongst other things.
[39]
That
said, Mr. Dearnley points to paragraph 22 of Commissioner’s Directive 860,
which specifically contemplates withdrawals from inmates’ savings accounts over
and above the $500 limit for “family related reasons”. Such withdrawals are
subject to a case-by-case review by the Institutional head or his or her
delegate. Mr. Dearnley says that the desire to purchase tickets to attend a
family reintegration day is a “family related reason”, and that, as a result,
withdrawals from savings accounts should be permitted for this purpose.
[40]
Mr.
Dearnley also points to paragraph 23 of Commissioner’s Directive 860, which
allows for withdrawals from inmates’ savings accounts over and above the $500
limit for “private family visits”. In Mr. Dearnley’s submission, a family
reintegration day is akin to a private family visit, and inmates should be able
to finance each type of visit in the same way.
[41]
I
cannot accept Mr. Dearnley’s submissions. Insofar as to paragraph 23 of
Commissioner’s Directive 860 is concerned, there is a fundamental distinction
between “private family visits”, as the term is used in paragraph 23, and family
reintegration days. Private family visits are part of Corrections Canada
programming. In contrast, family reintegration days are social events,
organized by inmates for the inmates and their families.
[42]
I do
not mean to minimize the importance of family reintegration days to inmates.
Family reintegration days are clearly very important to inmates and to their
families, and should be encouraged. They obviously play an important role in
assisting in maintaining the cohesiveness and integrity of family units dealing
with very trying circumstances.
[43]
That
said, paragraph 19 of Commissioner’s Directive 860 specifically contemplates
that payments for “family assistance” and “community celebrations” be made out
of inmates’ current accounts. An inmate-organized family reintegration day is
clearly a community celebration.
[44]
Commissioner’s
Directive 860 is intended to limit inmate access to funds, in part, to reduce
criminal activities within penal institutions, such as the drug trade and
“muscling” (that is, the extortion of inmates by other inmates). However,
given that payments for tickets to family reintegration days are strictly
monitored by the institution, the respondent concedes that allowing inmates to
pay for attendance at family reintegration days out of their savings would not
raise any security concerns.
[45]
However,
the Directive has a second purpose, which is to teach inmates to budget, and to
ensure that they have access to funds on their release from prison.
[46]
There
is no evidence before me of any individuals ever actually being precluded from
attending a family reintegration day because of a lack of funds resulting from
the decision to bring the policy at Warkworth Institution into conformity with
the rest of CSC’s penal institutions. Nevertheless, I accept that money is
tight for many inmates. This is, however, also a fact of life for many people
in the outside world. Learning to budget and prioritize one’s expenditures is
an important life skill, and teaching inmates to budget their funds is part of
the policy rationale underlying Commissioner’s Directive 860.
[47]
Moreover,
Commissioner’s Directive 860 strikes an appropriate balance between inmates’
ability to access their finds within the institutional setting, while ensuring
that an appropriate monetary ‘safety net’ is available to inmates on their
release. In doing so, the policy allows inmates to provide assistance to their
families on an urgent basis while the inmate is still incarcerated, while, at
the same time, providing the inmate with resources to assist the inmate in
re-establishing him- or herself in society after release.
[48]
Given
that one of the statutory obligations imposed on CSC is to prepare inmates for
release into society, it is, in my view, entirely reasonable to restrict or
limit inmates’ access to their savings accounts in the manner in issue in this
case. Moreover, I am satisfied that the separation of inmate accounts into
savings and current accounts, and the corresponding restrictions on those
accounts are the least restrictive measures that could be used to achieve these
objectives.
Conclusion
[49]
Having
concluded that the CSC’s interpretation of the relevant provisions of
Commissioner’s Directive 860 is reasonable, and is consistent with the policy
considerations underlying the Directive itself, this application for judicial
review is dismissed.
[50]
However,
as a result of the confusion surrounding, and the inconsistency in the
application of the Directive within Warkworth Institution, and in the exercise
of my discretion, I decline to make any order as to costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for judicial review is dismissed, without
costs.
“Anne
Mactavish”
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