Federal Court Decisions

     T-1444-96

Between:

     MICHAEL SCHEMMANN,

     Applicant,

     - and -

     DEPUTY COMMISSIONER OF CORRECTIONS

     OF THE CORRECTIONS SERVICE OF CANADA,

     Respondent.

     REASONS FOR ORDER

MULDOON, J.

     This is an application for judicial review from a decision of the Senior Deputy Commissioner of Corrections dated June 2, 1996, denying a grievance filed by the applicant on April 23, 1996. Before the Court is the affidavit of Michael Schemmann, filed June 18, 1996, (hereinafter the Schemmann affidavit) exhibit D.

     The applicant is an inmate at Mountain Institution (the Institution), and is serving a sentence of five years imprisonment. His sentence commenced on March 17, 1994. He has never been found in possession of contraband nor been convicted of an institutional disciplinary infraction.

     Reference

     Originating notice of motion, paragraph 2

     Schemmann affidavit, paragraph 2

     Staff at the Institution became aware that inmates were receiving cheques, money or other unauthorized items in privileged correspondence. Since October or November, 1995, inmates at the Institution have been required to open all incoming privileged correspondence in the presence of a visits & correspondence officer to verify that the contents do not include cheques, money, or other unauthorized items.

     Reference

     Affidavit of Sharon Pesclevich, filed July 26, 1996

     (Pesclevich affidavit) paragraphs 3, 7 and 8.

     Affidavit of Debbie Sisson, filed July 26, 1996

     (Sisson affidavit), paragraphs 2 and 3.

     When privileged correspondence is received at the Institution, the following procedure applies:

a.      the correspondence is given to the inmate unopened;

b.      the inmate opens the envelope or package in the presence of a visits & correspondence officer; the inmate is ordered to do so under the sanction of being required never to open the envelope or package;

c.      the contents of the envelope are scanned by the visits & correspondence officer to verify that the contents do not include cheques, money, contraband or other unauthorized materials.

     Reference

     Pesclevich affidavit, paragraph 9

     The visits & correspondence officers do not read the correspondence opened in accordance with the procedure outlined in paragraph 5 above.

     Reference

     Pesclevich affidavit, paragraph 9

     The applicant completed an inmate complaint form on February 6, 1996, complaining about the requirement that he open privileged correspondence in the presence of institutional staff. This complaint was denied.

     Reference

     Schemmann affidavit, exhibit C

     The applicant presented a third level grievance on April 23, 1996, which was denied. In his decision, the respondent held:

Because of past incidents of abuse of privileged correspondence..., the institution has reasonable grounds to verify the contents of envelops[sic] designated as privileged, without reading the correspondence and without infringing upon the inmates' rights and need for confidentiality. The institution has the authority in law to require you to open privileged correspondence in the presence of a V & C officer in order to ensure the absence of contraband. Your correspondence was handed to you unopened and it was not read by the V & C officer, therefore respecting your rights regarding privileged correspondence. The institution was justified in its actions and acted within the authority granted by law. Therefore, your grievance is denied.

This was an authorized decision by the Senior Deputy Commissioner, and it is the subject of this judicial review.

     Reference

     Schemmann affidavit, exhibit D

     Was the respondent correct in deciding that the Institution has legal authority to require inmates to open privileged correspondence (here, from the registrar of the British Columbia Court of Appeal inter alia) in the presence of a visits & correspondence officer? Was the respondent correct in deciding that the regulations justify the required presence of a visits & correspondence officer when an inmate opens privileged correspondence? The legislation must be considered.

     Section 89(1) of the Corrections and Conditional Release Act Regulations (the Regulations) allows Correctional Service of Canada staff to inspect the contents of mail received by an inmate for contraband. The Regulation states:

89.(1)      Subject to subsection 94(1), a staff member may inspect an envelope or a package sent or received by an inmate to the extent necessary to determine whether the envelope or package contains contraband, but the staff member may not read the contents of the envelope or package.

"Subject to subsection 94(1)" is to be fully regarded.

     Reference

     Corrections and Conditional Release Act Regulations,

     s. 89

     Respondent's book of authorities, tab 1

     Section 94 of the Regulations further deals with the interception of inmate communications and states:

94.(1)      Subject to subsection (2), the institutional head or a staff member designated by the institutional head may authorize, in writing, that communications between an inmate and a member of the public, including letters, telephone conversations and communications in the course of a visit, be opened, read, listened to or otherwise intercepted by a staff member or a mechanical device, where the institutional head or staff member believes on reasonable grounds

(a)      that the communications contain or will contain evidence of

(i)an act that would jeopardize the security of the penitentiary or the safety of any person, or

(ii)      a criminal offence or a plan to commit offence; and

(b)      that interception of the communications is the least restrictive measure available in the circumstances.

(2)      No institutional head or staff member designated by the institutional head shall authorize the opening of, reading of, listening to or otherwise intercepting of communications between an inmate and a person set out in the schedule, by a staff member or a mechanical device, unless the institutional head or staff member believes on reasonable grounds

(a)      that the grounds referred to in subsection (1) exist; and

(b)      that the communications are not or will not be the subject of a privilege.

     Reference

     Corrections and Conditional Release Act Regulations, s. 94

     Respondent's book of authorities, tab 2

     The schedule referred to in section 94(2) of the Regulations lists those persons whose correspondence with an inmate is privileged, and includes judges, registrars of Canadian Courts and legal counsel.

     Reference

     Corrections and Conditional Release Act Regulations,

     Schedule

     Respondent's book of authorities, tab 3

     The respondent submits that the Senior Deputy Commissioner was correct in holding that the Regulations permit an Institution to require that an inmate open privileged correspondence in the presence of a staff member. The staff member does not open or read the correspondence, and therefore the restriction set out in Regulation 94(2) does not apply. The respondent's posture herein would be unassailable if regulation 94(2) went on to provide "but an inmate is required to open such privileged communications as letters or packages in a staff member's presence to determine whether they contain contraband . . . ", but it does not so provide.

     In the alternative, the respondent submits that if s. 94(2) of the Regulations applies to the circumstances of this case, then the Institution's action is justified because staff members had reasonable grounds to believe the security of the Institution would be jeopardized by the introduction of contraband or other unauthorized items through correspondence marked as privileged. Further, the staff members had reasonable grounds to believe such items could not properly be the subject of a privilege.

     Reference

     Pesclevich affidavit, paragraphs 3, 7

     Sisson affidavit, paragraphs 2, 3

     Further, commissioner's directive 085 directs that privileged correspondence be forwarded to inmates unopened. The procedure implemented by the Institution complies with this direction. In effect, this is just a ruse or a technique of literal compliance, but substantive breach.

     Reference

     Schemmann affidavit, exhibit B

     Respondent's book of authorities, tab 4, article 8.

     According to the respondent's counsel's arguments, the "Commissioner's directive 085 allows the institutional head to authorize the opening and reading of privileged correspondence where there are reasonable and probable grounds to believe the communication is not properly the subject of a privilege and the correspondence contains evidence of an action that would jeopardize the security of the Institution or the safety of an individual.". This proposition is correct, as stated. However, the respondent behaves in fact as if he believes that all privileged communications contain "evidence of an action which would jeopardize the security . . . or the safety . . . ."

     Reference

     Commissioner's directive 085

     Schemmann affidavit, exhibit B

     Respondent's book of authorities, tab 4, articles 5, 9

     The respondent submits that, "taken together, the Regulations and Commissioner's directive allow an institution, at a minimum, to inspect incoming correspondence in the presence of the addressee even if it is otherwise privileged." The respondent means all incoming correspondence, and that proposition is legally wrong. Of course, if the respondent can show, in the words of directive 085, "reasonable and probable grounds to believe" that all incoming correspondence contains that which jeopardizes security and safety then either the respondent's behaviour is lawful (which it is not) or the commissioner needs to go with his case to Parliament for lawful authorization for what the visits & correspondence officers are now doing. It would not shock this judge's sensitivities if Parliament were so to provide. However, it does not currently so provide. The notion of reasonable and probable grounds does not presently apply universally to everyone. It applies to any particular item of correspondence for which such grounds actually exist. Probably letters from the Registrar of the British Columbia Court of Appeal are not carriers of contraband. They might be, but the reasonable and probable grounds, if any, must be demonstrated in regard to each item. Parliament could otherwise provide.

     The Supreme Court of Canada considered the issue of privileged correspondence and the right of an inmate to receive such correspondence unopened in the case of Solosky v. The Queen. In that case, the Court considered that the right of an inmate to communicate freely with his or her solicitor should be balanced with the requirement to maintain the safety and security of the Institution. The Court held that any interference in privileged communications must be no greater than that which is essential for the maintenance of the security of the Institution and the rehabilitation of the inmate. The Regulations then in force were interpreted as authorizing the opening and examination of mail to the minimum extent necessary to establish that it was properly the subject of solicitor client privilege.

     Reference

     Solosky v. R., [1980] 1 S.C.R. 821 at p. 841

     (1979), 105 D.L.R. (3d) 745 (S.C.C.)

     Respondent's book of authorities, tab 5 at page 761

     The reasoning in Solosky v. The Queen applies to this case. The examination of inmate correspondence for unauthorized items is necessary to maintain the security and proper administration of the Institution. Inmates are required to open their correspondence in the presence of a visits & correspondence officer who verifies that no unauthorized items are received by the inmate, but this requirement operates universally, and without reasonable and probable grounds. The correspondence is not read by the institutional staff. The interference with the inmate's right to receive privileged correspondence is minimally interfered with, but it is interfered with without reasonable and probable grounds. Let Parliament say that all incoming privileged correspondence must be so opened.

     It may well be that the Senior Deputy Commissioner was correct in holding that the situation at the Institution justified the requirement that privileged correspondence be opened by inmates in the presence of a visits & correspondence officer. However, since directive 085 exacts "reasonable and probable grounds", the present practice is against the directive unless justified by legislative authority.

     The institutional staff may have had reasonable grounds to believe that money, cheques and possibly narcotics were being smuggled frequently into the Institution in privileged correspondence, but what were the reasonable and probable grounds vis-à-vis this applicant's privileged correspondence? What may then be needed is legislative authority for universal opening of all privileged correspondence in the presence of a visits & correspondence officer.

     Reference

     Pesclevich affidavit, paragraph 7

     Sisson affidavit, paragraphs 2, 3

     The respondent submits that the requirement that inmates open privileged correspondence in the presence of staff members is the least restrictive alternative available to preserve the security of the Institution while at the same time maintaining the privacy rights of the inmates. If that be a universal requirement, the directive 085 cannot simultaneously exact "reasonable and probable grounds" in regard to every inmate's privileged correspondence. The directive must be interpreted and enforced as it is, and not as it might be.

     The Court will grant the applicant an order nisi.

     For all of the foregoing reasons the applicant's motion is allowed. The Commissioner and the Deputy Commissioner, the Correctional Service of Canada - that is, the respondent - is ordered to forward communications between the applicant and the persons listed in the schedule to subsection 94(2) of the regulations under the Corrections and Conditional Release Act being the Corrections and Conditional Release Regulations SOR/92-620 (including Court registrars, since the applicant has no legal counsel, but acts on his own behalf) without requiring the applicant to open his privileged correspondence from and to any and all such persons, or show its contents, in the presence of any institutional staff, unless such staff can show and state to him or to an objective third party reasonable and probable grounds for believing that his privileged correspondence contains something which jeopardizes the Institution's security or the safety of any person.

                             (Sgd.) "F.C. Muldoon"

                                 Judge

February 4, 1997

Vancouver, British Columbia