Date: 19981021
Docket: T-1970-98
BETWEEN:
ROBERT BOUTILIER and PAUL PAYAN on behalf
of themselves and all other inmates of
Joyceville Institution located in
the County of Frontenac, Province of Ontario
Applicants
- and -
THE COMMISSIONER OF CORRECTIONS, and
THE WARDEN OF JOYCEVILLE INSTITUTION
Respondents
REASONS FOR ORDER
DUBÉJ:
[1] The applicants seek an interlocutory injunction to prevent the respondents from implementing and operating a palm scanning device at the Joyceville Institution.
1. Facts
[2] The device in question is an "Equinox System" which is a computerized identification, accounting and inventory system which includes as one of its components the "scanning device" which was brought into operation at the institution's canteen on October 8, 1998. It now replaces a manual paper card accounting system utilized until that time.
[3] According to the affidavit of Lois Corcoran, Chief Personal and Social Development Division, the purpose of the Equinox System is to better supervise and audit the operation of the inmates' canteen which is financed through money held in the inmate welfare fund in accordance with the provisions of the Correctional and Conditional Release Act as well as the Commissioner's Directive (CI) No. 890. The purpose of the system is also to reduce incidents of fraud and coercion with respect to goods and money held by the canteen.
[4] So as to activate the Equinox System the inmate places his hand on a metallic scanning pad for a short period of time so that a matching of his hand with information on file can take place. Once he is identified, his canteen account is displayed on a screen and he can purchase items from the canteen up to the limit displayed.
[5] In her affidavit Mrs. Corcoran also states that she had been aware of the inmates' concerns regarding the transmission of infectious disease and consequently a spray bottle of disinfectant and wiping cloths are made available to enable them to clean the scanning device before using it. She adds that the disinfectant is of the same type used by the supply and services personnel when cleaning up areas possibly containing contaminated fluids at the Institution.
[6] In his affidavit, the applicant Robert Boutilier, states that he is very concerned about the possibilities of contracting Hepatitis C through the device as there are over 500 inmates who use the canteen. Since approximately 33% of the inmates have Hepatitis C, he fears "the possibilities of contracting the disease by coming in contact with an open sore or cut through the device is serious". Attached to Mr. Boutilier's affidavit is a letter from Dr. Peter Ford, a specialist in internal medicine and rheumatology as well as a Professor of Medicine at Queen's University, Kingston, Ontario. His one paragraph letter addressed to the applicants' counsel reads as follows:
Hepatitis C can be transmitted by blood coming into contact with an open sore or cut, As can Hepatitis B. Given the high frequency of Hepatitis C in Joyceville, (of the order of 33% as of this year) this raises a distinct possibility that anything that had the hands of 500 inmates on it, could possibly transmit infection. The chances of this happening would depend on how many inmates had open sores or cuts on their hands at any one time, and this is something that is unknown to us. The only figure that I can give for possible transmission under these circumstances would relate to hospital accidents, where blood is introduced into cuts or though needlestick, which is one in ten for Hepatitis C and one in five for Hepatitis B.
2. Applicants' submissions
[7] The applicants submit that the implementation of the device violates the applicants' rights to life and security of the person and their right not to be deprived thereof except in accordance with the principles of fundamental justice, as stipulated under Section 7 of the Canadian Charter of Rights and Freedoms ("the Charter"). If that be so, that would, of course, be a ground for an interlocutory injunction.
[8] The applicants also allege that the scanning of the palm print constitutes an invasion of the applicants' privacy and constitutes an unreasonable search under Section 8 of the Charter. In my view, this second ground is ill-founded. This system of computerized identification is merely one of many modern methods to deal more efficiently with the administrative operations of a carceral institution.
3. Interlocutory injunction
[9] In R. v. Beare[1], the Supreme Court of Canada held that fingerprinting of a person charged but not convicted of an indictable offence did not infringe the Charter. In Weatherall v. Canada (Attorney General)[2], that Court concluded that frisk searches of male inmates by female guards did not violate Sections 7 and 8 of the Charter. In R. Hufsky[3], that Court held, inter alia, that the appellant's right to be secured against unreasonable search as guaranteed by Section 8 of the Charter was not infringed where an investigating officer required the appellant to produce a licence or permit. As my colleague Lutfy J. said in Hunter v. Canada[4] after a learned review of the jurisprudence in the matter (at p. 965): "These decisions teach that an individual's reasonable expectation of privacy will necessarily be limited in a carceral setting".
[10] It is trite law that there are three tests to be applied so as to determine whether an interlocutory injunction should issue: 1) serious question to be tried; 2) irreparable harm to the applicant if the injunction is not granted; and 3) the balance of convenience.
[11] It is also common ground that the threshold for the first test is very low as the full merits of a case cannot be assessed at this interlocutory stage. "A prolonged examination of the merits is generally neither necessary nor desirable"[5]. It has been held by Hugessen J.A. in Horii v. Canada[6] that the mere "fact that the harm sought to be avoided is in the future does not make it speculative". He further stated as follows (at p. 147): "An applicant for an injunction does not have to wait for the damage to occur before seeking relief. In fact, the principal purpose of an interlocutory injunction is to prevent threatened harm before it happens. It is the likelihood of harm, not its futurity, which is the touchstone."
[12] In the instant case, irreparable harm is the crucial factor. Clearly, if there is no likelihood of harm from the operation of the Equinox System, then, there is no serious issue to be considered and no basis for an interlocutory injunction. Thus, in view of the brevity of Dr. Ford's letter, it became vital that he be examined by counsel. Both solicitors and Dr. Ford agreed to be questioned via telecommunication between Kingston and Ottawa.
4. Dr. Ford's viva voce evidence
[13] Dr. Ford has not seen the scanning device in question and does not know its configuration. He confirmed that there is a high frequency of Hepatitis C at the Institution and thus a perception of risk on the part of the inmates which may be greater than the reality. Usually, Hepatitis C is contracted by way of unprotected sex, intravenous drug use and tattooing. It could also be contracted through blood from a cut in the hand of a donor transmitted to the hand of a recipient who also has an open sore on his hand. However, the blood would be visible on a metallic pad unless the hand has to be introduced inside the scanning device. There is no evidence that such is the case. Thus, there is a theoretical risk of contamination but it is very low and may be prevented by the use of a peroxide based disinfectant. However, penitentiaries are dangerous places and the environment is always risky. The risk of Hepatitis C transmission may also be present from the exchange of blood on gym equipment or conceivably a door knob, but inmates may use gloves when in the gymnasium. They are not allowed to do so when pressing the palm of their hand on the scanning device. Of course, if inmates fear the presence of blood on the metallic pad, they can easily clean it with a wiping cloth and peroxide disinfectant.
4. Disposition
[14] In my view, the applicants have not established the likelihood of harm from the use of the palm scanning device. If they fear the risk of contamination, they can clean the metallic pad before using it. Moreover, according to the oral evidence of Dr. Ford, the contaminated blood would have to be transmitted from cuts or open sores in one hand to cuts or open sores in the hand of another person and the quantity of blood necessary to carry the virus would be visible.
[15] Counsel for the applicants suggested that the Institution could use other means of supervision of the canteen, such as the use of cards (the system used earlier). But, a penitentiary is not a bank and since the purpose of the system is also to reduce incidents of fraud and coercion, it may very well be that cards are not a viable solution. In any event, it is not for the Court to decide whether or not another supervision system ought to be installed. In this instance, the role of the Court is to determine whether there is a likelihood of irreparable harm from the operation of the scanning device system. The evidence, at this interlocutory stage, is not to that effect. Consequently, an interlocutory injunction may not issue.
[16] The application is denied with Court costs (not on a solicitor/client basis).
OTTAWA, Ontario
October 21, 1998
Judge
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1970-98
STYLE OF CAUSE: ROBERT BOUTILIER ET AL.
v. THE COMMISSIONER OF CORRECTIONS ET AL.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: OCTOBER 20, 1998
REASONS FOR ORDER OF JUSTICE DUBÉ
DATED: OCTOBER 21, 1998
APPEARANCES:
DIANE MAGAS REPRESENTING THE APPLICANTS
JEFF ANDERSON REPRESENTING THE RESPONDENTS
SOLICITORS OF RECORD:
MAGAS LAW OFFICE FOR THE APPLICANTS OTTAWA, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENTS DEPUTY ATTORNEY
GENERAL OF CANADA