Date: 20011221
Docket: T-1597-00
Neutral citation: 2001 FCT 1427
JUDICIAL REVIEW OF FAILURE
TO PROVIDE COMPLETE DISCLOSURE
DISOBEYING ORDER OF COURTs127. (1) MARTIN'S CRIMINAL CODE
DISOBEYING A STATUTE s126. (1) MARTIN'S CRIMINAL CODE
BETWEEN:
LLOYD GRANT WEDOW
Plaintiff
- and -
CORRECTIONAL SERVICE OF CANADA, BOWDEN INSTITUTION,
MITCH KASSEN, MARCEL CHIASSON, and RICHARD TOBIN
Respondents
[1] The Applicant is an inmate in the custody of the Bowden Institution in Alberta. On December 18, 1999, the Applicant's friend, Ms. Debbie Sauer, attempted to visit him, but was refused entry because of a "positive hit" for cocaine and heroine reading on the institution's Ion Scanner. Ms. Sauer was asked to leave and, despite verbal requests, she was not shown or given the test results in writing.
[2] That same day, the Applicant wrote to Warden Kassen requesting information regarding the incident, including a request for copies of the test results and incident report, and the names and credentials of the officers involved in the testing. On December 20, 1999, Ms. Sauer also wrote the Warden requesting the scanner readings and any incident reports.
[3] Warden Kassen responded to the Applicant's and Ms. Sauer's letters on January 7, 2000. With respect to the Applicant's request, the Warden simply stated that the information requested would not be provided and no reasons were given. In response to Ms. Sauer, the Warden stated what I consider to be the decision presently under review, being: "The Service is not required to provide you with a written statement specific to the readings obtained via the scanner".
[4] The central question to be answered in this judicial review is whether there was an obligation on the Warden to provide the Applicant and Ms. Sauer, in writing, the test results of the Ion Scan. In my opinion, the Warden was required by law to do so.
[5] Section 71(1) of the Corrections and Conditional Release Act, 1990, c.20, (the "Act") entitles inmates to reasonable contact, including visits and correspondence, with family and friends. This right is subject to safety and security measures. This entitlement is reinforced in the Corrections and Conditional Release Regulations, SOR/92-620 (the "Regulations") and Commissioner's Directive 770-Visiting, 1997 (the "Directive"). When safety and security considerations warrant refusal or suspension of visits, both instruments outline specific procedures to be followed. Section 91(2)(a) of the Regulations reads as follows:
91(2) Where a refusal or suspension is authorized under subsection (1),
(b) the institutional head or staff member shall promptly inform the inmate and the visitor of the reasons for the refusal or suspension and shall give the inmate and the visitor an opportunity to make representations with respect thereto.
91(2) Lorsque l'interdiction ou la suspension a été autorisée en vertu du paragraphe (1) :
b) le directeur du pénitencier ou l'agent doit informer promptement le détenu et le visiteur des motifs de cette mesure et leur fournir la possibilité de présenter leurs observations à ce sujet.
[6] Section 18(b) of the Directive affords similar procedural fairness rights, but with the added requirement that the reasons for a refused visit must be in writing. That provision reads as follows:
18. Where a refusal or suspension of visit is authorized under paragraph 17:
18. Lorsqu'une interdiction ou une suspension de visite est autorisée en vertu du paragraphe 17 :
b. the institutional head shall inform the inmate and the visitor promptly, in writing, of the reasons for the refusal or suspension and shall give the inmate and visitor an opportunity to make representations with respect thereto. The title of the person to whom they should address their representations should be indicated
b. le directeur doit rapidement informer par écrit le détenu et le visiteur des motifs de cette mesure et leur fournir la possibilité de présenter leurs observations à ce sujet (le titre de la personne à qui adresser ces observations devrait être indiqué);
The extent of this disclosure is limited only by Privacy Act considerations regarding personal information. In this case, this is not a relevant consideration because the personal information of parties, other than the Applicant and Ms. Sauer, is not at issue.
[7] The question that remains is whether this scheme of rights specifically requires the provision of the test results to the Applicant and Ms. Sauer. I find that this is exactly the type of situation the Regulations and the Directive are intended to cover. The reason for refusing entry to Ms. Sauer is the "positive hit" on the Ion Scanner, and, in my opinion, to be informed in writing of this reason means being given the Ion Scanner reading in writing.
[8] In addition, in my opinion, the Regulations and the Directive afford the Applicant and Ms. Sauer procedural fairness rights which were breached in this case; by law, each was required to be promptly provided, in writing, the written test results of the Ion Scanner. "Promptness" in this case means that the Applicant and Ms. Sauer should have been provided with the written results at the time of the refusal. In my opinion, the failure to do so is contrary to law.
O R D E R
[9] Accordingly, this application for judicial review is granted, and I hereby declare the Warden's decision to be unlawful. I award to the Applicant, as costs, proven out-of-pocket expenses incurred in bringing this application.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
December 21, 2001
TRIAL DIVISION
Date: 20011221
Docket: T-1597-00
JUDICIAL REVIEW OF FAILURE
TO PROVIDE COMPLETE DISCLOSURE
DISOBEYING ORDER OF COURT s.127. (1)
MARTIN'S CRIMINAL CODE
DISOBEYING A STATUTE s.126 (1)
MARTIN'S CRIMINAL CODE
BETWEEN:
LLOYD GRANT WEDOW
Applicant
- and -
CORRECTIONAL SERVICE OF CANADA, BOWDEN INSTITUTION,
MITCH KASSEN, MARCEL CHIASSON,
and RICHARD TOBIN
Respondents
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1597-00
STYLE OF CAUSE: LLOYD GRANT WEDOW v. CORRECTIONAL SERVICE OF CANADA et al.
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: December 20, 2001
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: December 21, 2001
APPEARANCES:
Mr. Lloyd Wedow FOR APPLICANT
Ms. Deborah Babiuk-Gibson FOR RESPONDENTS
SOLICITORS OF RECORD:
Mr. Lloyd Grant Wedow
Innisfail, Alberta FOR APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENTS