Date: 20080626
Docket: T-27-07
Citation:
2008 FC 811
OTTAWA, ONTARIO,
JUNE 26, 2008
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
PIERRE-PAUL
POULIN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Poulin seeks
judicial review of the decision of the Commissioner of the Correctional Service
of Canada (CSC), rejecting his grievance filed in respect of the Deputy
Commissioner’s refusal to allow him to acquire a scanner for his personal
computer. The applicant, who is visually impaired, alleges that the decision
was made without regard for the requirements of procedural fairness, that the
decision was ultra vires the Commissioner’s authority under the Corrections
and Conditional Release Act, S.C. 1992, c.20, (“the Act”) and that the
decision contravenes his equality rights under subsection 15(1) of the Canadian
Charter of Rights and Freedoms (the Charter).
BACKGROUND
[2]
Mr. Pierre-Paul
Poulin is a 60 year-old inmate at Mission Institution, a federal penitentiary.
Mr. Poulin suffers from marked myopia and severe amblyopia, particularly in his
right eye. Although he is not legally blind, this means that he has a serious
visual impairment. Since 2001, he has been a “client” of the Canadian National
Institute for the Blind (CNIB).
[3]
In February of 2006,
Mr. Poulin was assessed (apparently at the request of CSC) by a CNIB adaptive
technology specialist, Mr. Stephen Heaney, in order to evaluate large print
adaptive options to assist him with accessing his Windows-98 based computer, as
he was experiencing visual strain and fatigue when using his computer and was
finding that the text quality using BigShot magnification software was too
grainy (he apparently obtained this software as well as other equipment such as
an increased size monitor subsequent to a 2002 CNIB assessment). In his assessment report,
Mr. Heaney discussed three options which may be summarized as follows:
(1)
The MAGic Magnification software package would allow Mr. Poulin to have
computer documents and screens read to him, which would rest his eyes as “using
both vision and hearing together allows for reduced vision strain.” Coupled
with a standard scanner with adaptive software, e.g. Text Cloner Pro, he would
also be able to convert printed documents into computer text if he so wished,
and have them rendered into speech. In response to the security concerns raised
by the parole officer present at the assessment, that the scanner could be used
to scan images such as identification badges, Mr. Heaney suggested that the
scanner driver could be configured with the adaptive reading software only and
not the typical scanning applications. In terms of cost, this option was
assessed at $595 - $640 for the MAGic software; $130 for the scanner; and $130
for the Text Cloner software for total of approximately $855-$900.
(2)
A dedicated reading machine would also allow Mr. Poulin to have print materials
read to him. Such devices start in the range of $2500. There is no information
as to whether used models could be purchased.
(3)
Print materials could also be accessed using a closed circuit television (CCTV)
coupled with a video magnifier. These start in the range of $1700 for a new
model but Mr. Heaney noted that used models are also available.
[4]
Mr. Heaney concluded
his assessment by noting that “[t]he choice of adaptive technologies will
depend on the state of Mr. Poulin’s vision. For the foreseeable future, the
computer-MAGic Magnification solution will allow for flexibility in providing a
solution that is workable even if there is future vision loss. A CCTV for
document magnification is also preferred for the same reasons. The
scanner-software option is best if the CCTV no longer provides proper access to
documents, or if extensive document reading is required.”
[5]
Subsequent to the
assessment, Mr. Poulin prepared a 7-page proposal for improving access to
computers for inmates with physical and visual impairments, which he submitted to the
Assistant Commissioner of Correctional Operations and Programs in May of 2006. Mr.
Poulin noted that his proposal was to be read in conjunction with the 2005
proposal of the Advisory Committee on Inmate Access to Computers (a working
group wherein CSC, inmates, academics and prisoner’s rights groups were
represented.) There is no mention in the record as to the actual status of
these proposals and what if any response was made.
[6]
Although the issue
will be discussed in greater detail below, it should be noted at this stage
that the possession of scanners by inmates is strictly prohibited by CSC as a
matter of policy per Commissioner’s Directive 90 (CD-90). Despite this general
prohibition, the directive lists as allowable “hardware, software, and
peripherals required to provide computer accessibility for those with visual or
physical impairment when reviewed and approved by the Deputy Commissioner of
the region.” Similarly, the Assistant Commissioner, Correctional Programs and
Operation, Irving Kulik acknowledged in a letter dated July 28, 2003 that Mr.
Poulin requires a computer because of his disability, and informed him that
notwithstanding a CIC moratorium on the updating of inmates’ computers (in
force as of October 2002), any updates Mr. Poulin might require by reason of
his vision problems would be evaluated on a case-by-case basis on their merits.
[7]
Referring to this
letter from Assistant Commissioner Kulik, on May 18, 2006 Mr. Poulin wrote to the
CSC Deputy Commissioner for the Pacific Region, Mr. Demers, requesting
approval to purchase a scanner with limited scanning (text only) capabilities,
to address the concerns raised by the parole officer at the time of his CNIB
assessment. In that document, Mr. Poulin referred to the scanner as “one
solution” and did not discuss the CCTV option. Mr. Poulin also indicated that “in
order to mitigate threats to CSC, staff, inmates and the public, and/or any
security concerns” he would consent to the search protocol recommended by CSC’s
Advisory Committee on Inmate Access to Computers in its 2005 report; this
protocol contemplates various “levels” of searches, from visual inspection
through forensic examination. This letter also appears to indicate that Poulin
made an earlier request for a scanner which was turned down, although the Court
has no information in this regard and does not know what if any information
about security risks was disclosed to Mr. Poulin at that time.
[8]
The request of May 18
was turned down because “[scanners] raise significant security concerns.” In his
brief letter dated June 8, 2006, Deputy Commissioner Demers suggested that Mr.
Poulin pursue instead the alternative option of a CCTV video magnifier for
reading printed text, “as this option poses far less security concerns”.
[9]
Mr. Poulin replied to
this refusal by letter dated June 19, 2006, wherein he requested particulars as
to the security concerns referred to by the Deputy Commissioner, reiterated his
consent to a search protocol including forensic inspection, and affirmed that
his request should be evaluated with regard to several Commissioner’s
directives (including CD-90) and various provisions of the Act.
[10]
Mr. Poulin also wrote
that “all of my requests to assist my impairment (…) should be evaluated on the
basis of merit and with respect to all relevant Laws and authorities,” and
set out why he would prefer a scanner to a CCTV device, noting that a CCTV
would be inappropriate because his cell was already overloaded with larger
accessories, and that he wondered who would pay for it. He commented that “a
dedicated reading machine starts in the $2500.00 range”. That said, elsewhere
in the same letter Mr. Poulin noted that he was aware of another inmate having
been provided computer software and vision aids, the cost of which was covered
by CIC. Finally, the applicant also suggested that he be transferred to a minimum
security institution, where he might have easier access to a scanner.
[11]
In his reply dated
July 7, 2006, the Deputy Commissioner confirmed his initial refusal, again on
the basis that “there are specific security concerns regarding your having a
scanner. Information Technology Services has been consulted (…) It was
determined that there is no way to mitigate the security concerns this item
would present in an institutional setting.” In response to Mr. Poulin’s
concerns about space in his cell, the Deputy Commissioner mentioned that the
penitentiary has larger “handicapped” cells which might be available to him. As
for the cost of a CCTV-video magnifier device, the Deputy Commissioner
responded that although such devices start at $1,700.00, they are often
available on consignment, noting that overall the price is comparable to the
price of a new computer, whereas unlike a computer the CCTV-video magnifier
would not become obsolete. In respect of a possible transfer, Mr. Demers
indicated that the medium security rating of Mr. Poulin had been confirmed in
March 2006 and that in any event, it was not likely that a scanner would be
manageable at a minimum security institution.
[12]
Finally, the Deputy
Commissioner stated that Mr. Poulin’s request had been considered individually
on the basis of merit, and noted that “[r]ights and freedoms enshrined within
the Charter are subject to reasonable limits, and this limitation is entirely
reasonable given the circumstances within an institution.”
[13]
On September 7, 2006,
Mr. Poulin filed a third-level grievance seeking the reversal of Deputy
Commissioner Demers’ refusal. Mr. Poulin substantially reiterated his earlier
submissions, and specified that his grievance should be considered in light of
subsection 15(1) of the Charter, various provisions of the Act, as well
as policy CD-90. He wrote that “CSC’s efforts to accommodate me,
particularly that I may use their scanner as needed, the purchase of a CCTV
and/or moving to a larger cell, cannot be considered as an option … [t]hese
measures would not accommodate my disability as completely as the scanner would
… [t]he CCTV does not have the same capability as the scanner and as such
cannot read the document to you … [it] would only be a short term solution
and would create additional strain and fatigue, as well as further
deterioration of eyesight” (my emphasis).
[14]
Hence, it would
appear that CSC offered Poulin access to an institutionally owned scanner at
some point prior to his grievance. It is also notable that although Mr. Poulin
dismissed the CCTV as a short-term solution,
there is no evidence before the Court that his vision has been assessed for
deterioration in the time since the CNIB assessment. In fact, the most recent
optometrist’s report in the record dates back many years. Nor is there evidence
that Mr. Poulin actually engages in extensive print document reading (see note
1), or that he recently had more difficulties reading print materials (see 2002
CNIB assessment). And as noted, the 2006 CNIB assessment was initially meant
to deal with issues arising from extensive computer use. (Mr. Poulin did in
fact proceed to purchase the recommended MAgic Magnification Software, allowing
on-screen computer documents to be read to him.)
[15]
In his grievance, the
applicant also alleged that insufficient details as to CIC’s security concerns with
scanners had been shared with him, and that as a result, it was difficult for
him or the CNIB specialist to comprehend them.
[16]
Mr. Poulin’s
grievance was formally denied on January 4, 2007. The Commissioner’s denial
letter notes that CD-90 strictly prohibits scanners, and details the security
concerns they raise:
“First,
scanners present a significant risk because they can be used to manipulate and
reproduce documentation. For the same reasons you would install software
excluding the scan of images as you suggested, would one also exclude text. As
well, scanners may be used to digitize and encrypt documentation in order to
impede searches for unauthorized software.
“Second,
there is significant risk that the scanner or scanning software will be used by
another individual than you for malicious purposes. It is not practicable for
an Officer to be posted in your cell to monitor your computer to prevent
inappropriate usage. There is significant potential danger even if numerous
precautions are taken, and those needed are not operationally feasible.
“Third,
if the scanner were maintained in the possession of a staff member, various
liability issues could be raised should something of a destructive nature
occur.”
[17]
The letter then
states that any exceptions to policy CD-90 Mr. Poulin might be entitled to
invoke on account of his disability are themselves subject to restrictions
consistent with the principle expressed in the Act that “the protection of
society be the paramount consideration in the corrections process.” The letter
concludes with a suggestion that Mr. Poulin pursue “alternatives made available
to you in prior correspondence,” and notes that Health Services will provide
additional visual aid equipment if they assess a need for it “to carry on the
activities of daily living”.
The letter also states that Mr. Poulin is “entitled to exceptions considered to
present a lower risk.”
[18]
It is this decision
which is the subject of the present application.
ISSUES
[19]
It became clear at
the hearing, after the Court specifically sought clarification in this respect,
that the applicant’s allegation of procedural unfairness relates only to Deputy
Commissioner Demers’ failure to provide information that would have allowed him
to exercise his rights. In that respect, both parties agreed in post-hearing
submissions that the decision of the Federal Court of Appeal in Canada
(Attorney General) v. Flynn, 2007 FCA 356 (at paras. 28 and 47) is binding,
and that any information provided by CSC at a later stage would not cure an
initial breach.
[20]
The applicant also
challenges the decision on other grounds, submitting that the Commissioner
exceeded his jurisdiction under the Act, and that the refusal to grant the exemption
sought violated his rights under subsection 15(1) of the Charter.
LEGISLATIVE
FRAMEWORK
[21]
The following
legislative provisions are relevant here:
|
Constitution
Act, 1982,
Part 1, Canadian
Charter of Rights and Freedoms
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.
(…)
15. (1) Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
|
Loi
constitutionnelle de 1982
Partie
I
Charte canadienne des droits et libertés
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.
(…)
15.(1) La loi ne fait acception de personne et s'applique également à
tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment
de toute discrimination, notamment des discriminations fondées sur la race,
l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou
les déficiences mentales ou physiques.
|
|
Corrections
and Conditional Release Act,
S.C. 1992, c. 20
|
Loi sur le système
correctionnel et la mise en liberté sous condition
1992, ch.
20
|
|
3. The purpose
of the federal correctional system is to contribute to the maintenance of a
just, peaceful and safe society by
(a)
carrying out sentences imposed by courts through the safe and humane custody
and supervision of offenders; and
(b)
assisting the rehabilitation of offenders and their reintegration into the
community as law-abiding citizens through the provision of programs in
penitentiaries and in the community.
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;
(…)
(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;
(…)
(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
(…)
27. (1) Where
an offender is entitled by this Part or the regulations to make representations
in relation to a decision to be taken by the Service about the offender, the
person or body that is to take the decision shall, subject to subsection (3),
give the offender, a reasonable period before the decision is to be taken,
all the information to be considered in the taking of the decision or a
summary of that information.
(2) Where an
offender is entitled by this Part or the regulations to be given reasons for
a decision taken by the Service about the offender, the person or body that
takes the decision shall, subject to subsection (3), give the offender,
forthwith after the decision is taken, all the information that was
considered in the taking of the decision or a summary of that information.
(3) Except in
relation to decisions on disciplinary offences, where the Commissioner has
reasonable grounds to believe that disclosure of information under subsection
(1) or (2) would jeopardize
(a) the
safety of any person,
(b) the
security of a penitentiary, or
(c) the
conduct of any lawful investigation,
the
Commissioner may authorize the withholding from the offender of as much
information as is strictly necessary in order to protect the interest
identified in paragraph (a), (b) or (c).
(…)
70. The
Service shall take all reasonable steps to ensure that penitentiaries, the
penitentiary environment, the living and working conditions of inmates and
the working conditions of staff members are safe, healthful and free of
practices that undermine a person’s sense of personal dignity.
(…)
76. The Service
shall provide a range of programs designed to address the needs of offenders
and contribute to their successful reintegration into the community.
(…)
87. The
Service shall take into consideration an offender’s state of health and
health care needs
(a) in
all decisions affecting the offender, including decisions relating to
placement, transfer, administrative segregation and disciplinary matters; and
(b) in
the preparation of the offender for release and the supervision of the
offender.
|
3.
Le système correctionnel vise à contribuer au maintien d’une société juste,
vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines
par des mesures de garde et de surveillance sécuritaires et humaines, et
d’autre part, en aidant au moyen de programmes appropriés dans les
pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à
leur réinsertion sociale à titre de citoyens respectueux des lois.
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;
(…)
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;
(…)
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;
(…)
27. (1) Sous réserve du
paragraphe (3), la personne ou l’organisme chargé de rendre, au nom du
Service, une décision au sujet d’un délinquant doit, lorsque celui-ci a le
droit en vertu de la présente partie ou des règlements de présenter des
observations, lui communiquer, dans un délai raisonnable avant la prise de
décision, tous les renseignements entrant en ligne de compte dans celle-ci,
ou un sommaire de ceux-ci.
(2) Sous réserve du
paragraphe (3), cette personne ou cet organisme doit, dès que sa décision est
rendue, faire connaître au délinquant qui y a droit au titre de la présente
partie ou des règlements les renseignements pris en compte dans la décision,
ou un sommaire de ceux-ci.
(3) Sauf dans le cas des
infractions disciplinaires, le commissaire peut autoriser, dans la mesure
jugée strictement nécessaire toutefois, le refus de communiquer des
renseignements au délinquant s’il a des motifs raisonnables de croire que
cette communication mettrait en danger la sécurité d’une personne ou du
pénitencier ou compromettrait la tenue d’une enquête licite.
(…)
70.
Le Service prend toutes mesures utiles pour que le milieu de vie et de
travail des détenus et les conditions de travail des agents soient sains,
sécuritaires et exempts de pratiques portant atteinte à la dignité humaine.
(…)
76. Le Service doit offrir une
gamme de programmes visant à répondre aux besoins des délinquants et à
contribuer à leur réinsertion sociale.
(…)
87. Les décisions concernant un
délinquant, notamment en ce qui touche son placement, son transfèrement, son
isolement préventif ou toute question disciplinaire, ainsi que les mesures
préparatoires à sa mise en liberté et sa surveillance durant celle-ci,
doivent tenir compte de son état de santé et des soins qu’il requiert.
|
ANALYSIS
[22]
As a
preliminary matter, it should be noted that both parties to this application
filed affidavit evidence which was not before the Commissioner (even though he
had to deal with the breach of procedural fairness and the subsection 15(1)
arguments), particularly evidence relating to the security issues presented by
scanners in the institutional setting and the possibility of mitigating them
through various technological means. Mr. Poulin retained the services of an
expert in this respect. He also included an affidavit of Mr. Heaney, the CNIB
adaptive technologies specialist who evaluated him in 2006. In proceedings on
judicial review such evidence is generally inadmissible because a review is not
intended as a trial de novo: Bekker v. Canada, 2004 FCA 186, at
para. 11. In pre-hearing submissions, the applicant noted that by including
new evidence, the respondent was unlawfully trying to supplement the
Commissioner’s reasons. The parties ultimately agreed at the hearing that except
for Mr. Poulin’s affidavit of March 20, 2007, the record should not be
supplemented with new evidence, and that the Court should confine itself to material
which was actually before the decision-maker.
[23]
With respect to the
appropriate standard of review, as mentioned the applicant attacks the impugned
decision among other things on grounds of procedural fairness and
alleged non-compliance with the Charter. Thus, it is unnecessary to have
recourse to the administrative law analysis to determine the standard of
review; in Sketchley v. Canada [2005] F.C.J. No. 2056, the Federal Court
of Appeal stated that a defect in procedural fairness is reviewable independently
of the pragmatic and functional analysis (as it was then known), and in Multani
v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, at paras. 15-17, a
majority of the Supreme Court of Canada stated the same with respect to an
alleged incompatibility of an administrative decision with the Charter.
[24]
Otherwise, the vires
of the decision is evidently a question of law reviewable for correctness.
Procedural
Fairness
[25]
Although as noted
above, it was agreed that the sufficiency of disclosure should be assessed with
reference to the decision of Deputy Commissioner Demers of July 7, 2006, Mr.
Poulin argues that even if the Deputy Commissioner had provided him with those
details contained in the Commissioner’s decision on his grievance, these details
would still have been insufficient to meet the duty of procedural fairness in
this case.
[26]
It is
well-established that procedural fairness requirements are variable in the
prison context and will depend on factors such as the nature of the decision at
issue and the seriousness and duration of its consequences: Flynn, at
para. 15; Gallant v. Canada (Deputy Commissioner, Correctional
Services Canada), [1989] FCJ No. 70, at para. 28. This is in line with
well-known principles of fairness articulated by the Supreme Court of Canada
in Baker v. Canada, [1999] 2 S.C.R. 817, at paras. 21-28.
[27]
In Gallant,
the Court of Appeal articulated a basic distinction between
disciplinary and administrative decisions in the penitentiary context which
remains useful:
In the case of a
decision aimed at imposing a sanction or a punishment for the commission of an
offence, fairness dictates that the person charged be given all available
particulars of the offence. Not so in the case of a decision to transfer made
for the sake of the orderly and proper administration of the institution and
based on a belief that the inmate should, because of concerns raised as to his
behaviour, not remain where he is. In such a case, there would be no basis for
requiring that the inmate be given as many particulars of all the wrong doings
of which he may be suspected. Indeed, in the former case, what has to be
verified is the very commission of the offence and the person involved should
be given the fullest opportunity to convince of his innocence; in the latter
case, it is merely the reasonableness and the seriousness of the belief on
which the decision would be based and the participation of the person involved
has to be rendered meaningful for that but nothing more.
[28]
The decision before
the Court clearly falls into the administrative category, with the added
particularity that here, Mr. Poulin himself initiated the scanner request and
the exemption it necessarily entailed with his letter of May 18, 2006. Only
after the request had been denied a first time by Mr. Demers (letter of June 8,
2006) did Mr. Poulin request disclosure of particulars. Moreover, the 2003
letter for Assistant Commissioner Kulik which sets out that updates to Mr.
Poulin’s computer required by reason of his visual disorder would be approved
or refused on a case-by-case basis clearly contemplates an administrative
assessment, and not an adversarial process.
[29]
As for the importance
of the decision to Mr. Poulin, the Court is prepared to accept that in
theory, the decision has a possible bearing on his autonomy and is potentially
heavier in consequence than would be, for instance, the suspension of conjugal
visits that was at issue in Flynn.
[30]
That said, the
circumstances of Mr. Poulin’s request considered as a whole (which include the
existence of lower risk options) would point towards relatively minimal
disclosure requirements (still sufficient to ensure meaningful participation in
the process but nothing more) if it were not for the potential applicability of
s.27 of the Act, which imposes on CIC an “onerous disclosure obligation,” as it
was described by the Supreme Court of Canada in May v. Ferndale Institution,
2005 SCC 82, at para. 95, albeit in a very different factual context. Subject
to certain limitations listed at subsection 27(3) of the Act, subsection 27(1)
expressly establishes inmates’ right to disclosure of information, either in
full or in summary form, in cases where they are entitled by the Act or
Regulations to make representations with regard to a decision affecting them. Although
it is far from clear to the Court that s. 27 was actually engaged when Mr.
Poulin made his request to Deputy Commissioner Demers, both parties have made
representations on the basis that it was.
[31]
Looking at the
information Mr. Poulin did have, the CNIB assessment of February 2006 indicates
that he was made aware of CSC’s security concerns as regards image-scanning
capabilities at least as early as the time of his evaluation. The respondent
argues that notwithstanding the lack of evidence that Mr. Poulin was informed then
or later of other security concerns discussed in the Commissioner’s decision (namely
the ability to manipulate and reproduce documentation ( text) using a scanner, the
ability to digitize and encrypt information to impede searches for unauthorized
software, or concerns over liability if the equipment was left in the custody
of CSC’s staff) , Mr. Poulin was certainly able to propose substantive measures
to mitigate “threats to CSC, staff, inmates and the public, and/or any security
concerns” in his request letter of May 18. A specific search protocol was
proposed (visual inspection, internal system inspection, file content
inspection and forensic inspection) in his letter of June 19, 2006. Thus, in
the respondent’s view, the applicant demonstrated a working knowledge of the
risks as they existed in the institution. He made appropriate representations
and was clearly able to exercise “his right of objection”, as required by Flynn.
[32]
With respect to Mr.
Poulin’s actual or imputed knowledge of the concerns associated with scanners,
there is no evidence that the applicant was a member of the Advisory Committee
on Inmate Access to Computers. Certainly according to the member list in annex
B of that Committee’s 2005 report, which was included in the record, he was
not. Nor is there any evidence that details of the security concerns discussed
by said Committee (CSC‘s Technology Division appears to have been represented)
were shared with him. The Court notes moreover that the particular risks associated
with scanners per se appear to be distinct from those associated with computers
and software generally. These last topics were the only ones discussed in the
report.
[33]
It is not evident to
the Court that Mr. Poulin necessarily has the knowledge required to appreciate
that scanners may be used, for example, to digitize and encrypt documentation
in order to impede searches for unauthorized software. Also, the specific
objection raised by the parole officer during the CNIB assessment in February
2006, that CSC was concerned with image scanning capabilities, could reasonably
have lead Mr. Poulin to believe that such concerns did not extend to the
scanning of text. It would thus clearly be speculative for the Court to
conclude that Mr. Poulin had knowledge of the issues summarized in the
Commissioner’s decision. The Court cannot infer such knowledge for the purpose
of its analysis of the alleged breach of procedural fairness. The respondent’s
argument that the applicant actually knew or should have known what Deputy
Commissioner Demers meant by “security concerns” is unsubstantiated. The
respondent had the burden of providing the necessary evidence in that respect,
and Mr. Poulin was certainly not cross-examined in this regard.
[34]
There is no direct
information on file as to what particular security concerns Deputy Commissioner
Demers himself had in mind, but given that he specifically refers to a consultation
with CSC’s Information Technology Services, the same source of information consulted
by the Commissioner, the Court finds it reasonable to infer that the Deputy
Commissioner had in mind the same concerns that were later summarized in the
Commissioner’s decision (except perhaps the liability issue which arose from
Mr. Poulin’s further comments in his grievance).
[35]
The respondent also submits
that information as to particular vulnerabilities associated with scanners
falls within the exceptions set out at subsection 27(3) of the Act,
which exempts from disclosure information the Commissioner has reasonable
grounds to believe would jeopardize the safety of any person or the security of
the penitentiary.
[36]
The Commissioner
certainly did not invoke that provision in respect of the details he included
in his decision. Accordingly, the Court finds that paragraph 27 (3) was not in
play, in so far as this particular summary of the security issues involved is
concerned.
[37]
Thus, there is no explanation
of why Deputy Commissioner Demers could not have provided this or a similar summary
to Mr. Poulin. As mentioned earlier, the eventual disclosure of the summary by
the Commissioner does not cure the breach (see Flynn above); the Court
must therefore conclude that the Deputy Commissioner did indeed fail in his
duty to provide the information he relied upon or a summary thereof as
required by paragraph 27 (1) of the Act.
[38]
Given the applicant’s
position that a summary of the type provided in the Commissioner’s decision would
have been insufficient to meet the respondent’s duty of procedural fairness in
this case, it is worth noting that the Court agrees with the respondent that having
regard to the nature of the decision sought by the applicant and the other
relevant circumstances, a summary of the security concerns would have been sufficient
to meet the particular duty imposed in this case, whether or not paragraph 27
(1) of the Act applies. This is particularly the case where the Deputy
Commissioner’s decision turned more on the availability of suitable
alternatives presenting lower or no risk than on the possibility of mitigating
risks associated with scanners. The Court also agrees that disclosure of more
technical details (if not previously disclosed to the inmate population) would
likely fall within the exception provided for at paragraph 27 (3). In the
present context, there is no need to say any more, except perhaps to note that
the respondent’s disclosure of such details by way of an affidavit filed in the
present proceedings is not itself conclusive in that respect, as was argued by
the applicant. The context has changed and the importance of adducing strong
evidence for the Court may very well have outweighed the respondent’s other
legitimate concerns. Finally, it is worth noting that in general, Courts will show
some deference to CSC’s assessments of what information, not already made
public, is liable to jeopardize institutional safety.
[39]
To conclude, the
Court is satisfied that given the parameters set out in Flynn, above,
there was a breach of the duty of procedural fairness by Deputy Commissioner
Demers. As a rule and subject only to a limited exception that does not apply
here, the Court will intervene
when such a breach has occurred, quashing the decision. However, the applicant
has asked the Court not to simply remit this matter for re-determination but
rather to consider the other issues which have been put into play, particularly
the Charter challenge, in order to give specific directions in that respect or
to issue the decision which should have been made. Given the particular circumstances
of this case, the Court has decided to review the other issues raised by the
applicant.
Jurisdiction
[40]
Turning briefly to
the jurisdictional issue, Mr. Poulin contends that the decision on his
third-level grievance is ultra vires the Commissioner’s authority under
the Act, arguing that it violates principles enunciated therein by denying him
access to programs and personal growth opportunities that would assist in his
rehabilitation and reintegration (s.3 and s.76); by not using the least restrictive
means possible (s.4(d)); by unnecessarily removing his rights and privileges
(s.4(e)), by undermining his sense of personal dignity (s.70), and by failing
to accommodate and respect his disability (s.4(h) and s. 87). The applicant
raises this issue independently of his Charter challenge, although obviously
similar principles are engaged.
[41]
The Court considers
that this ground must fail. As the respondent points out, the Commissioner’s
decision of January 4, 2007 was made pursuant to policy CD-90. The applicant
has not alleged that policy CD-90 itself contravenes the Act, and on its face,
the directive falls squarely within the Commissioner’s rule-making authority
contemplated at s.97 and s. 98 of the Act. Moreover the Court agrees with
Justice Martineau’s observations in Poulin v. Canada, 2005 FC 1293, at
para. 26, that “the adoption of a coherent and predictable policy on staff
safety, and even the safety of the prison population, is of cardinal importance”,
and that “Directive 90, dealing with the possession of computers with certain
peripheral equipment in cells, is thus very important.”
[42]
Policy CD-90’s
underlying conformity with the Act is instructive insofar as the impugned
decision applies its rules. Annex A of CD-90 explicitly lists scanners as a
prohibited item only after specifying that “the following requirements are
based on CSC’s ability to reasonably assess and regulate various risks
associated with inmate-owned computers and electronic games in a correctional
setting.” In the Court’s view, this language is consistent with a legitimate
exercise of the discretion inherent in the application of the general
principles set out at section 4 of the Act, particularly subsection 4(e) which
enjoins CSC to employ the least restrictive means consistent with the
protection of the public, staff members and offenders.
[43]
As for the other
sections of the Act relied upon by the applicant in support of his
jurisdictional argument, it is quite clear that none of them are so directive
as to deprive CSC of its jurisdiction to decide Mr. Poulin’s grievance in the
way that it did. Suffice it to note that subsections 4(h) and 87(a) mandate
that CSC take into account Mr. Poulin’s disability in any decisions affecting
him, but do not dictate any particular outcome in matters such as this one,
where divergent policy goals and multiple considerations are engaged.
[44]
Accordingly, the
Court finds that the impugned decision of January 4, 2007 was properly within
the jurisdiction of the Commissioner in terms of his authority under the Act.
Moreover, had the reasonableness of the decision been contested on
administrative law grounds, the Court would have found that the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law. (Dunsmuir v. New Brunswick, 2008 SCC 9).
Charter
Conformity
[45]
On the question of
the conformity of the Commissioner’s decision of January 4, 2007 with
subsection 15 (1) of the Charter, that is, whether the guarantee of “equal
benefit of the law without discrimination …based on …physical disability” has
been infringed, both parties are in agreement that the tri-partite test set out
by the Supreme Court in Law should be applied here. That test asks
firstly, whether the measure complained of has as its object or effect the
imposition of differential treatment based on personal characteristics;
secondly, whether the differential treatment is based on one of the grounds set
out in subsection 15(1) or an analogous ground; and thirdly, whether the differential
treatment is contrary to the purpose of subsection 15(1), namely the protection
of fundamental human dignity ( Law, supra, at para. 88; Gosselin v.
Québec (A.G.) 2002 4 S.C.R. 429, at para. 17; Veffer v. Canada (Minister of Foreign
Affairs), 2007 FCA
247, at para. 39.)
[46]
It also bears
mention that in Auton v. British Columbia, [2004] 3 S.C.R. 657, at para.
25, Chief Justice Beverley McLachlin cautioned against “an overly technical”
approach to section 15 claims. Courts should be attentive to “the reality of
the situation.” Similarly, in Law itself Justice Frank Iacobucci was careful to comment, at
para. 87, that he did not mean to suggest “that a court which articulated its
analysis using a different structure would err in law simply by doing that,
provided it addressed itself properly and thoroughly to the purpose of s. 15(1)
and the relevant contextual factors.” As noted in Eaton v. Brant County of
Board of Education, [1997] 1 S.C.R. 241, at para. 67, the central purpose
of subsection 15(1) in relation to disability is to effect recognition and
reasonable accommodation of disabled persons’ actual characteristics.
[47]
It should be made
clear that there is no suggestion here that Policy CD-90, which contemplates
both a general prohibition on scanners and an exception for hardware, software,
and peripheral equipment required to provide computer accessibility for those
with visual or physical impairment, is unconstitutional. Rather, it is the specific
refusal of the applicant’s request to acquire a scanner which is said to
infringe the Charter. In this respect, this case is similar to Multani,
where a majority of the Supreme Court ruled that the application of a normative
rule may infringe the Charter where the decision-maker has acted pursuant to an
enabling statute, even if the normative rule itself is not objectionable in
terms of administrative or constitutional law. In such cases, an infringement of a protected
right will be found to be constitutional only if it meets the requirements of
s. 1 of the Charter,
that is, if (a) the
objective being pursued is sufficiently important to override a Charter right;
and (b) the means employed are rationally connected to the objective in
question, they are minimally impairing, and their deleterious effects are
proportional to the importance of the objective in question (R. v. Oakes, [1986]
1 S.C.R. 103).
[48]
It should also be
said that the analysis required here is not duplicative of that conducted above
on the question of jurisdiction, despite some similarities in the principles
involved, such as the idea that correctional policies, programs and practices should
respect among other things the needs of offenders with special needs
(subsection 4(h) of the Act). As it was observed in Multani, at para.
16, “it is not surprising that the values underlying the
rights and freedoms guaranteed by the Canadian Charter form part —
and sometimes even an integral part — of the laws to which we are
subject.”
Differential
Treatment
[49]
The first step of the
subsection 15(1) analysis set out in Law, at para. 88, asks
whether the impugned law draws a formal distinction between the claimant and
others on the basis of one or more personal characteristics or (b) fails to
take into account the claimant’s already disadvantaged position in Canadian
society resulting in substantively differential treatment between the claimant
and others on the basis of one or more personal characteristics. Here, the
impugned “law” is an individualized decision, and it is only in the sense that
the decision of January 4, 2007 fails to adequately address or take into
account Mr. Poulin’s visual impairment that it might result in differential
treatment.
[50]
The Court appreciates
that the prohibition of scanners in CD-90 engenders substantively differential
treatment to the degree that the utility of a scanner to Mr. Poulin differs
from its utility to members of the “appropriate comparator group,” inmates who
are not visually impaired. This special utility is clear in the CNIB assessment
of February 2006, which explains that a scanner in combination with the Text
Cloner Pro software allows printed materials to be converted to speech. The
first step of the Law analysis is thus made out, because members of the
comparator group would not normally need to make use of a scanner and
appropriate software to access print materials.
Distinction
on the Basis of Enumerated or Analogous Ground
[51]
The second step of
the Law analysis asks whether one or more enumerated or analogous
grounds of discrimination are the basis for the differential treatment. Here,
this is entirely straightforward. Visual impairment is a physical disability,
which is an enumerated ground.
Discrimination
[52]
At the third and
final step, the Court must determine whether the differential treatment in
question has an effect that is discriminatory within the meaning of the equality
guarantee. This is where the analysis becomes more complex, as the
jurisprudence has established that differential treatment will offend subsection
15(1) only if it demeans a claimant’s human dignity, which is not always a
readily definable concept. One way of putting this is to ask whether the
decision conforms to the concept of a society in which all persons enjoy equal
recognition as human beings: Law, para. 99. What is required is a contextual
analysis which incorporates both subjective and objective components; that is
to say, not only the applicant’s point of view, but also the point of view of
the reasonable person similarly situated to the claimant who takes into account
the contextual factors relevant to the claim (Egan v. Canada, [1995] 2
S.C.R. 513, at para. 58).
[53]
As the subsection
15(1) jurisprudence makes clear, the existence of pre-existing disadvantage,
stereotyping, prejudice or vulnerability is an important factor going to
context. Mr. Poulin did not lead evidence on this point but he did not have to:
Law, para. 77. The Court has no hesitation in taking judicial notice of
the vulnerability and disadvantages to which the visually impaired have in the
past been subject. As it was stated by Justice Gerard Laforest in Eldridge
v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para 56, “it is an unfortunate truth that
the history of disabled persons in Canada
is largely one of exclusion and marginalization. Persons with disabilities have
too often been excluded from the labour force, denied access to opportunities
for social interaction and advancement, subjected to invidious stereotyping and
relegated to institutions (…) [t]his historical disadvantage has to a great
extent been shaped and perpetuated by the notion that disability is an
abnormality or flaw. As a result, disabled persons have not generally been
afforded the "equal concern, respect and consideration" that s. 15(1)
of the Charter demands.”
[54]
However, this
factor alone is not necessarily conclusive of an affront to human dignity; as the
Supreme Court points out in Law, at para. 67, there is no principle or
evidentiary presumption that differential treatment for historically
disadvantaged persons is discriminatory. In this case, there are other
important contextual factors which must be brought into the picture, in
particular the correspondence - or lack thereof - between the ground on which
the claim is based and the actual need, capacity, and circumstances of Mr.
Poulin.
[55]
On this point, while
no doubt visually impaired, it is not disputed that Mr. Poulin is not legally
blind (which itself does not necessarily mean total loss of sight). As far as
the Court is able to determine, Mr. Poulin’s need for adaptive technologies to
access print materials has not actually been evaluated as such or
independently confirmed. The CNIB assessment of February 2006 was concerned
with visual strain arising out of computer use, and it appears that the accessibility
of print materials only came up incidentally, as an added advantage of the
MAGic Magnification software package. Mr. Heaney, the adaptive technology
specialist who conducted the assessment, is neither an optometrist nor an
optician. Moreover, as noted the most recent optometrist’s report in the record
before the Court is over ten years old. This is problematic from an evidentiary
standpoint, since part of the factual basis to Mr. Poulin’s claim is that his
eyesight is deteriorating. Nor is there any evidence that Mr. Poulin has
requested an assessment from CSC’s Health Services to determine whether he
requires additional visual aid equipment to carry on the tasks of daily living
– which would no doubt include the ability to access print materials - and
whether such equipment can be provided at CSC’s expense. Until such an
assessment is conducted, Mr. Poulin’s contention that a CCTV or any other
alternative proposed to him (such as a dedicated reading machine) is
prohibitively expensive is of little consequence.
[56]
There are other contextual
elements which further weaken the applicant’s case. Firstly, even if the Court assumes
that his need for technological assistance to access print materials is genuine,
various alternatives to scanner ownership which would permit Mr. Poulin such
access have been proposed, including the CCTV option, the use of an
institutional scanner, and in the CNIB assessment itself, the acquisition of a
dedicated reading machine.
All of this forms part of the “reality of the situation” before the Court, and in
the Court’s view must be noted at this stage if it is to address itself
properly and thoroughly to the purpose of section 15(1) and relevant contextual
factors, even if these same factors would obviously also have a bearing on the
reasonableness and justification of the decision under section 1 of the Charter,
should that provision become relevant.
[57]
Secondly, in Law, at
para. 70, it was stated that “legislation which takes into account the
actual needs, capacity, or circumstances of the claimant (…) in a manner that
respects their value as human beings and members of Canadian society will be
less likely to have a negative effect on human dignity.” Applying this
observation mutatis mutandis to Mr. Poulin’s case, the fact that the
decision of January 4, 2007 explicitly notes that “[y]our visual disorder is
recognized and the Institution as well as the CSC is required to assist you
using the least restrictive measures possible,” and that “you are entitled to
some exceptions according to CD-90,” points away from the existence of
substantive discrimination.
[58]
At this juncture it
should be recalled that the onus is on Mr. Poulin to establish an infringement
of subsection 15(1). In this regard, he asserted in his grievance that
alternative measures “would not accommodate my disability as completely as the
scanner would,” and that these “cannot be considered as an option,” but the
evidence to support this contention is very thin. As Mr. Poulin contends, it
may be significant that a scanner coupled with appropriate software can render
text into speech, whereas a CCTV only magnifies text. But even if this is so, he
has not explained how the differential effect operated by the prohibition on
scanner ownership can be qualified as discriminatory in terms of substantive
equality, where he has been offered access to an institutionally owned scanner.
[59]
This is not a minor
factual detail, but one which goes to the very existence of discrimination. That
Mr. Poulin has effective access to a scanner distinguishes his situation from
that of the claimants’ in Eldridge, where the failure of the BC Medical
Services Commission to provide sign language interpretation to deaf persons was
found to violate subsection 15(1). In that case, interpretation was qualified by
the Supreme Court as indispensable to effective communication in the
provision of medical care (at para. 72). Likewise, in Canadian Assn. of the
Deaf v. Canada, 2006 FC 971, Justice Richard Mosley described
interpretation services as necessary for effective communication in the
delivery of government services (at para. 118). In contrast, here the evidence
simply does not demonstrate that personal ownership of a scanner is either indispensable
or necessary for Mr. Poulin to access print materials.
[60]
On this basis, the
Court can only conclude that notwithstanding Mr. Poulin’s argument, a
reasonable person in his circumstances would not view the impugned decision as
discriminatory, having regard to the purpose of subsection 15(1) of the Charter.
In light of the overall context, there is insufficient evidence that the
decision imposes a real burden, let alone a burden which offends Mr. Poulin’s
human dignity, by not recognizing his special needs or otherwise.
[61]
If the Court had
concluded otherwise, the onus would shift to the respondent to show that the
subsection 15(1) infringement is justifiable pursuant to section 1 of the
Charter. That the assurance of security in the penitentiary context may be a sufficiently
important objective to justify overriding a Charter right is clear from the Act
itself, at section 4(a), where it is enunciated that “the protection of society
[is] the paramount consideration in the corrections process.” Here, the
respondent’s argument that there is a rational connection between the
prohibition on scanner ownership and security concerns in the institutional
setting would have been accepted, on the basis of policy CD-90 itself and more
particularly the reasons set out in the impugned decision. Moreover, the Court
would have found that a strict prohibition on scanner ownership is minimally
impairing where there is access to an institutionally owned scanner and
ownership of alternative technologies providing similar functionality. In the
circumstances of this case and considering the record before the Court, these
measures would constitute reasonable accommodation.
CONCLUSION
[62]
In view of the breach
of procedural fairness, the decision must be quashed. That said, given the
Court’s conclusions on Charter conformity, it would serve little purpose to
remit the matter back to the Commissioner for re-determination. This is
especially so when one considers that Mr. Poulin’s circumstances may well have
changed, and that there is nothing precluding him from making a fresh request
to the Deputy Commissioner if he deems it necessary on the basis of more
current evaluations of his needs. In addition, the Court must be mindful of the
need for judicial economy.
[63]
The
applicant will be entitled to his costs. The Court considered the parties’
arguments that there should be no costs granted in relation to the new
evidence, particularly the affidavits of Mr. Reinhardt and any affidavit filed
by the applicant in response thereto. Given that the respondent was really the
first to file new evidence in respect of the security issues, the Court has
concluded that no special directions will be issued in that respect.
ORDER
THIS COURT ORDERS that:
- The application for judicial review
is granted in part. The Commissioner’s decision of January 4, 2007 is quashed.
- The whole with costs to the
applicant.
“Johanne Gauthier”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-27-07
STYLE OF CAUSE: PIERRE-PAUL
POULIN and THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver,
BC
DATE OF HEARING: January 30, 2008 (1 day)
REASONS FOR ORDER
AND ORDER: The Honourable Justice Johanne
Gauthier
DATED: June 26, 2008
APPEARANCES:
|
Robin Gage
|
FOR THE APPLICANTS
|
|
Michelle Shea
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Robin Gage
Underhill
Faulkner Boies-Parker
Vancouver, BC
Michelle
Shea
Department
of Justice
|
FOR THE APPLICANTS
FOR THE RESPONDENT
|
Email this Content