Federal Court Decisions

     T-228-96

Between:

     PING LI,

     Applicant,

     - and -

     PETER DE VINK, PACIFIC REGIONAL DEPUTY

     COMMISSIONER OF CORRECTIONS,

     Respondent.

     REASONS FOR ORDER

GIBSON, J.

     By Originating Notice of Motion filed January 26, 1996, the Applicant, then an inmate at the Correctional Service of Canada's Mission Institution, seeks judicial review, in the terms of the Respondent's Memorandum of Fact and Law, ". . . from the decision preventing the Applicant from having a personal computer in his cell, . . . ". Details of the impugned decision are not clear from the Applicant's Originating Notice of Motion, but the Respondent does not indicate that it has been prejudiced in this regard and the imperfections are understandable given the Applicant's limited capacity in the English language and limited education in general. The Applicant seeks an Order of certiorari quashing the Respondent's decision preventing the Applicant from receiving his previously approved personal computer and an Order of mandamus ordering the Respondent to forthwith permit the Applicant to immediately receive possession of his previously approved personal computer.

     During July of 1995, the Applicant sought to acquire a personal computer to aid in his education and, more particularly, to aid in upgrading his English language skills. He received support at a number of levels within Mission Institution. He arranged for funds to purchase the computer at his own expense. He arranged for purchase of a computer from a commercial source outside of the Institution. Finally, on July 21, arrangements were completed to courier a cheque to the commercial source.

     The cheque was never delivered by the Correctional Service of Canada to the courier service.

     In his affidavit filed in this matter, the Respondent attests in part as follows:

4.      Until July 24, 1995, inmates in the Pacific Region [and Mission Institution is in the Pacific Region] have been allowed to have computers as cell effects subject to the directives in Commissioner's Directive 090 and Regional Instruction 090. In July, 1995, I modified Regional Instruction 090 by placing a moratorium on the purchase of new computers and the modification to existing computers. Although the Correctional Service of Canada has long recognized the value of computer literacy for inmates, advances in hardware and software have made it necessary for the CSC to re-examine its policies with respect to inmate's computers. Even though there were strict guidelines concerning the allowable software and hardware in the past, there were always periodic violations with inmates having access to unauthorized software, or obtaining information from the institution's computers. Because of the new and pending capabilities in hardware and software, and because the CSC's reliance on computers for its offender management system, I felt, based on my lengthy experience in the Correctional Service, that it was necessary in order to manage the security risk to the institutions to institute the moratorium until new national policies are in place. Similar moratoriums have been instituted in all regions of the CSC across the country. . .

     [errors in the quotation appear in the original]

     Commissioner's Directive 090, entitled Personal Property of Inmates, provides for the following policy objectives and responsibilities:

POLICY OBJECTIVES

1.      To ensure fair and consistent personal property allowances.

2.      To ensure a safe, secure and orderly institution by effectively administering the personal property of inmates.

---

RESPONSIBILITIES

3.      The Deputy Commissioner shall establish any further procedures deemed necessary for the receipt of property, its storage and safekeeping, its packaging upon the inmate's transfer or release, the inventory of cell property, and the purchasing and disposal of property.

     [underlining added by me for emphasis]

     Section 10.k. of Commissioner's Directive 090, under the heading Items Authorized as Cell Property, provides for personal computers as authorized cell property. A maximum value is placed on such computers. The computer that the Applicant sought to purchase was within the maximum value.

     Regional Instruction 090, apparently adopted under the authority of Commissioner's Directive 090, was adopted on July 5, 1994, and modified, as indicated earlier, in July of 1995. The modification to the Instruction appears to be in the following terms:

Effective July 24, 1995, no new offender owned computers or modifications to computer effects will be permitted. This moratorium on computer related additions to cell effects is in effect until further notice. Please see date details at the end of this Regional Instruction.

At the end of the Regional Instruction, the "moratorium" on acquisition of further computers is reiterated and there is an indication that the original of the moratorium was signed into effect by the Respondent on July 21, 1995.

     I was referred to no authority for a Regional Deputy Commissioner of Corrections to implement Regional Instructions in respect of inmates' personal property other than what is reflected in Section 3 of Commissioner's Directive 090 quoted above. That authority would appear to me to be limited to establishment of "procedures". The imposition of the moratorium in question simply was not within the Respondent's authority. In the result, I conclude that the Respondent acted without authority, as did those acting under his direction, in denying the Applicant the opportunity to acquire a computer for the perfectly legitimate objectives of education and language upgrading. Nowhere in the material before me was there an allegation that this particular Applicant was suspected of negative motives in his desire to acquire a computer for use in his cell.

     In the result, an Order will go granting this application for judicial review and declaring the moratorium imposed by the Respondent on the acquisition of computers by inmates in the Pacific Region, as it relates to the Applicant herein, to be of no force or effect.

     This matter, on application by the Applicant, has been dealt with pursuant to Federal Court Rule 324, that is to say, without an oral hearing. I was advised by the Court Registry that counsel for the Respondent orally indicated that the Respondent did not oppose the matter being dealt with without a hearing. This is an exceptional procedure. The Applicant was unrepresented, is serving a long term of imprisonment, and indicated to the Court that he lacked funds to pay for escort services from his place of incarceration to a hearing before the Court. But for these special circumstances, I would not have been prepared to deal with this matter without an oral hearing.

                             (Sgd.) "Frederick E. Gibson"

                                     Judge

September 19, 1996

Vancouver, British Columbia