Docket: T-1108-14
Citation:
2015 FC 934
Ottawa, Ontario, July 30, 2015
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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HARIS NARAINE
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
and
THE
COMMISSIONER OF CORRECTIONS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Naraine and the Inmate Committee of Archambault
Institution seek judicial review of a decision dated March 7, 2014, whereby the
Acting Senior Deputy Commissioner [Commissioner] of Correctional Service Canada
[CSC] denied Mr. Naraine’s grievance over the cancelling of two television
channels included in the package subscribed for by a group of inmates. These
television channels aired sexually explicit content and while the inmates
previously enjoyed access to these television channels, the Commissioner
concluded that under the law and new policy, the right to access the material
and live entertainment was not absolute; particularly, in accordance with CSC’s
responsibilities, the channels were banned to maintain a safe and healthful
environment. It was found that sexually explicit material undermined a person’s
sense of personal dignity, and in the circumstances under consideration, particularly
that of female correctional officers.
[2]
Mr. Naraine argues that: (i) the impugned decision
does not comply with his entitlements under the Corrections and Conditional
Release Act, SC 1992, c 20 [CCRA] and with the Corrections and
Conditional Release Regulations, SOR/92-620 [CCRR]; (ii) there was a
breach of procedural fairness, the content of which includes the inmates’ right
of consultation; and (iii) the decision violates the applicant’s rights to
freedom of expression guaranteed under section 2(b) of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[3]
At the hearing, the respondents agreed to waive their
right to costs in the event that this application be dismissed.
[4]
The role of this Court is not to determine
whether or not inmates in CSC’s institutions should have access to sexually
explicit television programs, but rather to assess the legality of the
Commissioner’s decision. For the reasons discussed below, the application for
judicial review will be granted and the file sent back to a different Commissioner
for a new determination.
Standing of the Inmate Committee
[5]
At the hearing, I raised the question of the
Inmate Committee’s standing as the impugned decision only concerns a
third-level grievance filed by Mr. Naraine.
[6]
Counsel for the applicant did not convince me
that the Inmate Committee had standing before the Court. It could very well be
that it has (a) a direct interest in the matter by virtue of a finding that the
matter at issue adversely affects the rights of its members, or (b) public
interest standing (Canwest MediaWorks Inc v Canada (Minister of Health),
2007 FC 752 at paras 13 and 18). However, no such evidence was adduced before
me and the Inmate Committee has not asked for intervener status. Therefore, its
name as an applicant will be struck out and the style of cause will be amended
accordingly.
II.
Facts
[7]
Mr. Naraine is a 46 year-old federal inmate in a
medium and minimum security detention facility for male prisoners called
Archambault Institution.
[8]
He claims that he and his fellow inmates at
Archambault and other CSC institutions previously enjoyed access to sexually
explicit programs as part of a local cable television package which they could
purchase through the Inmate Committee. These programs could be accessed on
closed circuit channels very late in the evening, usually after 11 PM.
[9]
In his affidavit, Mr. Naraine asserts having
watched sexually explicit content while at Archambault and previously at two other
institutions; to his knowledge, for at least 7 years (the period of his
incarceration) there had been no incidents or complaints from correctional officers
resulting from inmates’ access to that category of television programming.
[10]
On January 29, 2013, the Standing Committee on
the Status of Women held its 55th meeting at the House of Commons
whereby two witnesses from the Union of Canadian Correctional Officers
testified as part of a continuing study on sexual harassment in the federal
workplace. One of those two witnesses claimed that the Minister of Public
Safety had announced, in May 2012, that access to pornography on television in
CSC institutions was an unacceptable practice which he would be “putting an end to”.
[11]
On March 4, 2013, a videoconference was held by
the Assistant Commissioner/ Correctional Operations and Programs [ACCOP]; as a
follow-up to that videoconference he sent a Memorandum to all Assistant Deputy
Commissioners, Institutional Operations [ADCIOs] instructing that material
depicting sexually explicit content, on the walls inside inmates’ cells or elsewhere
in the institution, be removed, and that each region confirm that they have
introduced “appropriate blockers” to “X” rated television content. All regions
had to confirm that the measures were in place no later than March 25, 2013.
[12]
On March 22, 2013, the Inmates Committee was
informed that the transmission of the two television channels with explicit
content would no longer be broadcast as of March 25, 2013 at 4 pm.
[13]
On January 27, 2014, Mr. Naraine’s Third-Level Presentation
grievance, signed and dated January 6, 2014, was received by CSC. In his
grievance, he asked CSC to lift the recent ban on television channels that
otherwise aired sexually explicit content. He argued that the CSC had no right
to censor television channels which the inmates legally paid for. He cited Mercier
v Canada (Attorney General), 2009 FC 1071 for the proposition that
offenders retain the rights of all citizens, except those limited as a
necessary consequence of their sentence. By limiting their access to publicly
available television channels, the CSC violated their section 2 Charter rights;
the impact of the recent ban is also disproportionate to the stated intent of
the restriction.
[14]
Mr. Naraine further requested reimbursement for
the “channel packages” they had continue to pay for.
[15]
His grievance was denied.
III.
Impugned Decision
[16]
The Commissioner examined the applicant’s
submission, the relevant legislation and policy as well at his Offender
Management System file. She also consulted with National Headquarters in
addition to staff at Archambault Institution. The Commissioner concluded that “both law and policy prescribe that access to material is not
absolute” and that, in this case, there were serious concerns expressed
by female correctional officers relating to their security and personal dignity
concerning the sexually explicit material. The reasoning adopted by the
Commissioner is based on the following provisions:
-
Section 4(d) of the CCRA does indeed confirm
that offenders “retain the rights of all members of society except those that
are, as a consequence of the sentence, lawfully and necessarily removed or
restricted”;
-
Subject to certain conditions, the
Commissioner’s Directive 764 [CD 764] Access to Material and Live
Entertainment says that inmates “shall have” access to material and live
entertainment; under paragraph 4, such material must be: a) legally available
on the open market; b) adhere to the Copyright Act and c) not jeopardize
the security of the institution or the safety of persons;
-
Notwithstanding these conditions, under the same
directive, paragraph 7 says that the material can be prohibited if the
institutional head or his or her immediate delegate believes on reasonable
grounds that it is likely to be viewed by other persons and that it would
undermine the personal dignity by demeaning, causing humiliation or
embarrassment to a person on the basis of sex, race, national or ethnic origin,
colour or religion; subsection 96(2) of the CCRR is to the same effect;
-
Finally, section 70 of the CCRA states that CSC
has an obligation to take reasonable steps to insure the living and working
conditions of inmates and the working conditions of staff are “safe, healthful
and free of practices that undermine a person’s sense of personal dignity”;
[17]
Applying the factual circumstances to these
provisions, the Commissioner reasoned that the CSC had been informed of serious
concerns relating to female correctional officers who expressed a degraded
sense of personal dignity and their safety being undermined from their exposure
to sexually explicit material on a regular basis in the workplace.
[18]
The Commissioner then turned to the evidence
relating to these concerns, which subsequently led to a follow-up
videoconference between ADCIOs and the ACCOP. She then decided to introduce a
change in policy pursuant to paragraph 7 of the CD 764 (as emphasized above), by
issuing a Memorandum entitled “Inmate Access to
Sexually Explicit Material”, banning sexually explicit content from the
walls and blocking sexually explicit television channels.
[19]
In her discussion of the evidence, the
Commissioner cited the testimonies of the two correctional officers before the House
of Commons Standing Committee on the Status of Women, which expressed emotional
harm and insecurity resulting from “unwanted attention,
unwelcome comments and intentional displays of sexual gratification”
including deliberate exposure masturbating in front of the officers. These
incidents were said to be common in their workplace.
[20]
The Commissioner explained that it was impossible
to limit access to the television channels on a case-by-case review of
Correctional Plan objectives and offences because there were limitations in
technology, significant costs involved and management issues resulting from
double-occupancy of cells. Failure to ensure that a certain class of inmates were
not watching prohibited broadcasts would have a detrimental effect on their
reintegration:
. . . the population at AI includes inmates
who have committed sexual offences. In accordance with the objectives of their
Correctional Plans, many of these inmates are prohibited from accessing
sexually explicit material. The availability of sexually explicit content on
television channels within the Institution may expose these inmates to material
that they are not permitted to access, impeding the maintenance of an
environment that is conducive to actively encouraging and assisting offenders
to become law-abiding citizens.
[21]
It was finally found that there would also be no
ability to restrict access to the content on an individual basis without
breaching an inmate’s right to privacy.
IV.
Issues and Standard of Review
[22]
The issues raised by this application for
judicial review are as follows:
(1)
Was there a breach of procedural fairness?
(2)
Did the Commissioner commit a reviewable error
in his interpretation and application of the CCRA and policy?
(3)
Does the impugned decision violate the
applicant’s right of freedom of expression guaranteed by section 2(b) of
the Charter?
[23]
The third issue is a question of mixed fact and
law and attracts a reasonableness standard while questions of procedural
fairness attract a correctness standard (McDougall v Canada (Attorney General), 2011 FCA 184 at para 24).
[24]
On the issue of Charter violation, the
parties disagree on the applicable standard of review. The respondent argues
that the applicant is wrong to suggest a standard of correctness based on Multani
v Commission Scolaire Marguerite-Bourgeoys [2006] 1 S.C.R. 256 at para 17 and asserts
Doré v Barreau du Québec, [2012] 1 S.C.R. 395 at paras 33-34, 52-58 [Doré]
is authoritative.
[25]
The Doré new standard of review for
administrative tribunals’ assessment of Charter issues was also applied in the
Supreme Court of Canada’s most recent decision in Loyola High School v
Quebec (Attorney General), 2015 SCC 12, to a Minister’s discretionary
decision.
[26]
In Doré, the Disciplinary Council of the
Barreau du Québec rejected the appellant’s argument that article 2.03 of the Code
of ethics of advocates violated section 2(b) of the Charter, finding
that the limitation on freedom of expression was reasonable in the
circumstances. Justice Abella found that the role of a Court reviewing a
discretionary administrative decision was to ensure that the administrative
decision interferes with the relevant Charter guarantee no more than necessary
given the statutory objectives. If the decision has a disproportionate
impact on the guaranteed right, it is unreasonable. However, if the
administrative decision reflects a proper balance of these objectives with Charter
protection, it is a reasonable one. The Court must determine if the
decision-maker has proportionately balanced the relevant Charter values with
statutory objectives, in which case if he or she does do so, the decision will
be found to be reasonable.
[27]
The Charter issue raised in the present
application for judicial review will therefore be reviewed under the
reasonableness standard.
[28]
Finally, I also reject the applicant’s assertion
that in light of the power imbalance in the structure of CSC, as between the
institution and its inmates, the question at issue is of fundamental importance
to the legal system as a whole and outside the expertise of the Commissioner. In
Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 [Alberta Teachers], Binnie J stated that an
issue of general legal importance is one “whose
resolution has significance outside the operation of the statutory scheme under
consideration.” Since Alberta Teachers, the Supreme Court of
Canada has reiterated its strict limitations to the use of the exceptions to
the reasonableness standard (see for example, McLean v British Columbia
(Securities Commission), 2013 SCC 67). In my view, the interpretation of
the CCRA provisions by the Commissioner does not fall outside his or her
expertise and does not involve a question of central importance to the legal
system as a whole; it does not have significance outside the Canadian
correctional service system, nor does it involve any other special circumstance
that would require review on a correctness standard.
V.
Analysis
Procedural Fairness
[29]
The applicant submits that he was denied “administrative
fairness” because the inmates were not informed nor consulted prior to the
ACCOP issuing its memorandum banning the sexually explicit material. In
accordance with sections 27 and 74 of the CCRA, and the caselaw (Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Nicholson
v Haldimand Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311), the
applicant argues that he had a right to information on which the CSC would base
its decision and a right to make representations. He submits that a duty of
consultation was owed to him since the issues involved dealt only “secondarily”
with security; relying on William Head Institution Inmate Committee v
Canada (Corrections Service), [1993] FCJ No 821, he argues the decision
should be quashed.
[30]
The respondents submit that the applicant is
barred from raising the issue of procedural fairness as it was raised for the
first time on judicial review and not at the earliest practical opportunity. In
short, the applicant has waived his rights to challenge procedural violations (Maritime
Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 at paras
67-68; Restrepo Benitez v Canada (Minister of Citizenship and Immigration),
2006 FC 461 at para 220, aff`d 2007 FCA 199).
[31]
In the alternative, the respondents submit that
there was no duty to consult under the CCRA because section 74 explicitly
excludes decisions relating to security matters. The ban on sexually explicit
television channels relates to the security of staff and inmates. The
distinction raised between primary and secondary “security matters” has been previously
rejected by this Court (McDougall v Canada (Attorney General), 2010 FC
747 at para 23).
[32]
At the hearing, counsel for the applicant added
that the inmate population is vulnerable, they sometimes suffer from mental issues,
and some have little education; as a consequence, he says they could not have
been expected to raise the issue of procedural fairness which is otherwise a
sophisticated matter. However, the respondents pointed out that these
vulnerabilities did not preclude the applicant from adequately understanding his
Charter rights as raised in his grievance.
[33]
In my view, there is no need to delve into the content
of procedural fairness as the applicant has waived his right to raise violations
of procedural fairness; such allegations do not appear in his submissions before
the Commissioner at the final level grievance stage. The issue could have been
grieved in the Offender Grievance Presentation which was the earliest practical
opportunity. The applicant was fully aware of the television ban on March 22,
2013, upon receiving notice. This was prior to the date of submitting his application
which was signed and dated January 6, 2014. I therefore agree with the
respondents on this issue.
Reasonableness of the Decision
[34]
The applicant submits that the impugned decision
does not comply with the CCRA because it makes reference to only impressions
and unproven assumptions, not conclusive evidence and as such, is based on
speculation. As an example, the applicant discusses how the Certified Tribunal Record
[CTR] does not contain evidence showing a causal connection between access to
sexually explicit content and security risk or adverse effects on inmates’
progress.
[35]
For their part, the respondents maintain that
the decision is reasonable and reiterate that the testimonies of the two female
correctional officers, which are found in the CTR, served as uncontradicted
evidence before the Commissioner justifying her conclusions.
[36]
It is clear from the record before me that there
are some significant gaps in the CTR which make it difficult to support the
analysis of the impugned decision, most particularly the proportionality part, which
to some extent subsumes into the Charter analytical framework. There is no
specific evidence relating to the conditions or circumstances of Mr. Naraine’s own
institution, nothing about the management issues discussed in the impugned
decision.
[37]
The only evidence before me is the transcript of
the January 29, 2013 session held by the Standing Committee on the Status of
Women, containing the two testimonies of the female correctional officers. The
purpose of the meeting related more so to failures in the redress process and
the fact female staff workers, more generally in all federal agencies, were
unsatisfied with redress mechanisms (CTR, pages 41-66) and were deterred by
reason of their gender from coming forward with sexual harassment complaints in
the workplace.
[38]
As to the situation in CSC institutions, two
witnesses, both female correctional officers part of the Union of Canadian
Correctional Officers, testified. The first witness had 12 years of experience and
worked at the time at Kingston Penitentiary, a maximum security institution for
men. The second witness had 26 years of experience as a correctional officer
and at the time of her testimony, worked at Cowansville federal penitentiary, a
medium security institution. Security issues and emotional harm resulting from
inmates’ access to sexually explicit material was not the focus of the two
testimonies. The focus was rather on the lack of awareness, support and responsive
action on the employer’s part to prevent female officers from being sexually
harassed by inmates.
[39]
As indicated above, the first witness began her
testimony by citing the Minister of Public Safety, stating that he had been
made aware that federal inmates had access to pornography on television, that it
was unacceptable and that he would put an end to the practice. She added that
to date, it had not happened. She generally makes a link between inmates being “permitted to keep sexually suggestive and explicit magazines
and personal photographs that continue to subject female officers to unwanted
attention, unwelcome comments, and intentional displays of sexual
gratification” (CTR, page 44).
[40]
Although she states that similar incidents are
common, she provides only one example of a situation where a female colleague
reported an inmate deliberately and repeatedly masturbating in front of her
during her routine range walk on a midnight shift. Responsive action by
management was not immediate and she ultimately used 200 hours of sick leave as
a result of the employer’s inaction, before the inmate was finally reassessed
and found to be a sexual deviant. The testimony does not specify in which institution
this incident took place and more importantly, neither does it specify if this
inmate had access to sexually explicit television programs. During the rest of
her testimony, the officer criticizes the fact that those events seem to be
without consequence and that “intentionally
masturbating in front of an officer is not clearly defined [in CSC policies]
and this needs to change. Officers must be given a viable avenue in which
corrective measures can be consistently applied.”
[41]
As to the second witness, she does not make any
reference to the availability of sexually explicit television programs nor to any
other similar material. Her testimony focuses on the fact that female officers,
as opposed to their male colleagues, are subject to sexual harassment by
inmates. She notes that the employer has zero tolerance for harassment when it
happens between colleagues but when it is inmates who are responsible for
sexual harassment, resources are more limited. For several reasons she reports,
a victim will not easily confide in her work colleagues and superiors. In
addition to the emotional repercussions of sexual harassment, the victims’
careers may become undermined and they are “doubly
penalized” (CTR, page 46).
[42]
Despite the fact that the Commissioner states in
her decision having also examined, as part of her analysis, the applicant’s
Offender Management System file and having contacted staff at Archambault
Institution, she only refers to the testimonies before the Standing Committee
on the Status of Women to justify her conclusions. I have to infer from her silence
that no similar incident occurred at Archambault and more importantly, no
similar incident involved the applicant.
[43]
On the other hand, the applicant filed an
affidavit whereby he states that he had been in three different federal
penitentiary institutions for the last 7 years, where he had access to adult
pornography movies. These movies were available after evening lock down (11 pm)
when only night watch persons could look into the inmates’ cells. He adds that
it is unlikely that the officer would be exposed to the sight of the movies as
his television, as most televisions, points toward the back of his cell, in
order for his head to face the door, which he says is institutional policy. In
addition, the officer doing rounds at night would turn on a blue light in the
cell to announce him or herself. He would then make sure he was not doing
anything that would be offensive. He never had any incident or complaint from a
correctional officer, nor had he heard of any incident of an inmate being
reprimanded for doing anything related to, or while watching pornography.
[44]
I agree with the two correctional officers who
testified before the Standing Committee on the Status of Women that there must
be a zero tolerance policy toward inmates sexually harassing correctional
officers and that there must be “a viable avenue in
which corrective measures can be consistently applied” (CTR, page 44). I
also agree with the respondents: should causality be established between the
applicant or any other inmate at Archambault Institution, with respect to
accessing sexually explicit content on television and sexual harassment of
correctional officers or similar misconduct on the inmates’ part, it would
justify the imposition of a ban. However, there was no such evidence before the
Commissioner and her decision does not fall within a range of possible,
acceptable outcomes which is defensible in respect of the facts and law.
Charter Right
[45]
Again, I agree with the respondents that the
Court should follow the new analytical approach established by the Supreme
Court of Canada in Doré; courts must first consider whether a Charter
value is involved and if so, “the question becomes
whether, in assessing the impact of the relevant Charter protection and given
the nature of the decision and the statutory and factual contexts, the decision
reflects a proportionate balancing of the Charter protections at play”
(at para 57).
[46]
However I do not agree with the respondents that
the decision proportionately balanced the statutory objectives of the CCRA,
more specifically the obligation of CSC to provide a working environment that
is safe, healthful and free of practices that undermine a person’s sense of
personal dignity and the intimates’ right to have access to sexually explicit
material on television.
[47]
At the hearing, the respondents conceded that
freedom of expression is engaged and limited by the decision to ban access to
sexually explicit material. Freedom of expression is in fact notoriously wide
in scope and will capture the transmission and reception of sexually explicit
content. Therefore, the decision of the Commissioner upholding the ban on
access to sexually explicit material to inmates constitutes a prima facie
infringement of section 2(b) of the Charter (R v Sharpe, 2001 SCC
2).
[48]
However, the respondents are of the view that to
the extent the decision limits the applicant’s freedom of expression, it is
nevertheless reasonable as it strikes a proportionate balance between the
statutory objectives and the relevant Charter value.
[49]
The impugned decision states that one of the
main objectives of the CCRA is to provide a safe and healthful working
environment for correctional officers, free of practices that undermine a
person’s sense of personal dignity and that serious concerns were expressed
about the undermining of the personal dignity and security of female correctional
officers presumably at Archambault institution. However, the Commissioner does
not consider the specific context of the objectives at issue and there is no
evidence that the safety and healthful working environment of female
correctional officers at Archambault is jeopardized.
[50]
Moreover, the Commissioner’s exercise of
balancing interests and rights is found in a single paragraph of the decision:
Consideration has been given to limiting
access to sexually explicit content on television channels based on a
case-by-case review of Correctional Plan objectives and offence cycle; however,
the limitations in technology and significant costs involved are prohibitive.
Furthermore, population management issues sometimes result in double-occupancy
of cells. In these cases, there would be no ability to ensure that inmates are
not watching broadcasts which would have a detrimental effect on their
reintegration. There would also be no ability to restrict access to the content
on an individual basis without breaching an inmate’s right to privacy.
[51]
First, the CTR is silent on the alleged
limitations in technology and significant costs that would be involved in
limiting access on a case-by-case basis. The record contains a certain number
of emails from the Analyst, Offender Redress who was called upon to investigate
the applicant’s grievance, whereby she asks the Assistant Warden Operations, to
no avail, for information and documentation pertaining to the reason why the
ban was implemented in March 2013 (CTR, pages 67-71). The only substantive
information contained in the record is the transcript of the testimonies before
the Standing Committee on the Status of Women discussed above.
[52]
Second, in my view, it is impossible for this
Court to assess whether or not the decision has a disproportionate impact on
the guaranteed right or Charter value as no real balancing exercise was conducted
by the Commissioner; the purported effort to balance the objectives of the CCRA
with the restriction on the guaranteed right or Charter value is unsupported by
the evidence available in the CTR.
VI.
Conclusion
[53]
For all of these reasons, the application for
judicial review will be granted and the file sent back to a different Commissioner
for a new determination, including a proper assessment of the proportionality
of the restriction imposed on the applicant’s Charter right. Costs will
be granted to the applicant.
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