Date : 20041022
Docket : T-1828-03
Citation : 2004 FC 1457
BETWEEN :
SUSAN MARIE SOPER
Applicant
AND :
ATTORNEY GENERAL OF CANADA
Respondent
ROULEAU, J.
[1] The applicant seeks judicial review of a decision of the Mission Penitentiary Visitors Review Board (the "VRB") of Correctional Service Canada ("CSC") dated July 9, 2003, suspending the applicant's visiting privileges for a period of six months. The applicant seeks an Order quashing the decision and also that the VRB, specifically the Chair Rick Heriot, cease and desist the harassment the applicant has experienced and the attempts to impugn her character and deny inmates their right to the applicant visiting them.
[2] The applicant, who is self-represented, is an outreach worker at the Carnegie Health Outreach Program in Vancouver, British Columbia. In this capacity, on June 14, 2003, she attended at Mission Institution during an "open house" visitation to visit an inmate. There were over 100 visitors at the institution during that open house visitation.
[3] While the applicant was at the principal entrance of the institution, the Institutional Search Coordinator/Dog Handler conducted a routine search using the narcotic and firearms detector dog. After sniffing the applicant, the detector dog alerted the officer that the applicant was possibly in possession of illegal drugs. At this time, the applicant explained that her contact with an illegal drug most likely occurred through work-related dealings with someone who must have sat beside her.
[4] The Correctional Supervisor conducted a risk assessment and informed the applicant that her visiting privileges were suspended until the VRB could review the situation. Upon being informed of the decision, the applicant proceeded to take off her clothes and requested that she be strip-searched. As a consequence, her actions created a disturbance which was disruptive to the open house visits and which prevented staff from processing other visitors.
[5] Later that day, the applicant was informed in writing that her visiting privileges were suspended pending a hearing of the VRB; she was also advised that she could make representations at the VRB meeting.
[6] The VRB met on June 17, 2003. Discussion of the applicant's case was deferred until their next meeting, this in order to give the applicant as well as the inmate she was attempting to visit an opportunity to make representations at the next VRB hearing.
[7] On July 2, 2003, the applicant faxed her written representations to CSC for consideration by the VRB.
[8] On July 9, 2003, the VRB met and determined that the applicant's visiting privileges were suspended for six months.
[9] The applicant was advised in writing on July 16, 2003 by the Chairman of the VRB that her visitation privileges were suspended for a period of six months, to be reviewed on or before January 8, 2004. On January 14, 2004, the applicant was advised that her visiting privileges had been fully restored.
[10] The following sections of the Corrections and Conditional Release Act, S.C. 1992, c. 20, are applicable in this application for judicial review:
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
. . .
4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
. . .
(c) that the Service enhance its effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system, and through communication about its correctional policies and programs to offenders, victims and the public;
. . .
71. (1) In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.
. . .
[11] Additionally, the following paragraphs of the Commissioner's Directive 770: Visiting (2001-12-17) are relevant:
17. The Institutional Head may authorize the refusal or suspension of a visit between an inmate and a member of the public where he or she believes on reasonable grounds that:
a. during the course of the visit the inmate or the member of the public would:
1. jeopardize the security of the penitentiary or the safety of an individual; or
2. plan or commit a criminal offence; and
b. restrictions on the manner in which the visit takes place would not be adequate to control the risk.
18. Where a refusal or suspension of visit is authorized under paragraph 17:
a. the refusal or suspension may continue for as long as the risk referred to continues;
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 the visitor an opportunity to make representations with respect thereto. The title of the person to whom they should address their representations should be indicated; and
c. the extent of the information shared shall take into consideration limitations of the Privacy Act, namely to avoid the disclosure of any personal information to either party, unless the affected party agrees in writing to the disclosure.
19. Each visit shall be assessed on a case-by-case basis. The refusal or suspension of a visit from a specific individual to a particular inmate shall occur in accordance with the Duty to Act Fairly. The refusal or suspension of a visit from a specific individual shall continue only for as long as the risk which justified the refusal or suspension of the visit continues. The re-assessment of the risk shall be done not less than once every six (6) months and the result and the decision shall be forwarded in writing to the inmate within fourteen (14) days.
[12] Various other matters raised by the applicant in her argument are not properly before this Court and are outside the scope of this judicial review proceeding. Accordingly, insofar as the applicant's affidavit contains argument or attempts to introduce evidence that was not before the decision-maker as well as other issues, they shall be disregarded. The Court's concern is focussed on the decision to suspend her visiting privileges.
[13] The procedure to be followed when suspending a visitor's privileges is explained in Lord v. The Queen, 2001 FCT 397, by Mr. Justice Blais, at paragraphs 82 - 84:
Section 91 of the Corrections and Release Regulations gives the power to the institutional head or staff member to suspend a visit to an inmate where he believes on reasonable grounds that, during the course of the visit, the visitor would jeopardize the security of the penitentiary or the safety of any person.
It does not require a hearing before deciding the suspension of the visit. What it requires is that the institutional head promptly inform the inmate and the visitor of the reasons for the refusal or suspension and give the inmate and the visitor an opportunity to make representations with respect thereto.
Subsection 18b) of the Commissioner's Directive adds to this duty by requiring that the institutional head inform the inmate and the visitor promptly, in writing, of the reasons for the refusal or suspension and shall give the inmate and the visitor an opportunity to make representations with respect thereto. The title of the person to whom they should address their representations should be indicated.
[14] In light of the applicant's behaviour at the open house visit, it was not unreasonable for the VRB to suspend the applicant's visits on the day in question. The Corrections Supervisor conducted a risk assessment, and made the decision that the applicant be asked to leave. There is no obligation on a CSC officer to conduct a strip search by request; rather, as required by the legislation and the Commissioner's Directive 770, CSC is obligated only to inform the applicant of the reasons for the refusal and to give her an opportunity to make representations with respect to the refusal.
[15] I agree with the respondent's submission that, in applying paragraph 17 of the Commissioner's Directive 770 to the case at bar, once the drug dog gave a positive indication, it is reasonable and within the discretion of CSC to suspend the applicant's visiting privileges. Drugs are contraband in a Corrections environment and, given the open nature of the planned visit, the CSC acted reasonably.
[16] The applicant's visiting privileges were reinstated in January 2004 and the issue is now moot. I have been urged by counsel for the respondent that I should decline from exercising my discretion to consider the substance of the application. My concern is the fairness with which the respondent acted in July 2003 vis-à-vis the applicant.
[17] The more troubling aspect of this judicial review is the manner in which the VRB treated this applicant. She had her privileges suspended on the day she attended and was advised in writing that a visitor who wished to make representations before the Board may call to find out the date and time of the next meeting. Though it was scheduled for some time shortly thereafter, the meeting was postponed.
[18] In the meantime, the applicant filed a lengthy defence of her actions and activities and requested copies of reports of the officers who attended her on June 14 presuming they would be put before the Board and she wished an opportunity to comment or reply.
[19] There was no immediate response to the applicant's request. A meeting of the VRB was scheduled for July 2 and, upon being advised, the applicant faxed on July 2 further comments and defence of her conduct. She also requested, since she was unable to attend, whether the hearing could be held by conference call. There was no reply to this request. Nevertheless the matter was adjourned for hearing to July 9 without being advised.
[20] On July 16, the applicant received a decision in writing by the Chairman of the VRB he acknowledged her response to the incident which had occurred on June 14 and simply confirmed with her that her visitor's privileges were suspended for a period of six months.
[21] There is no doubt that, during the course of a hearing by the Board, attending officer's statements were filed and considered, copies of which are contained in the affidavit of Rick Heriot, the Chairman of the Board. These contained some 12 pages of submissions never provided to the applicant and she was not given an opportunity to contest or comment on the officers' statements or observation reports which were before the Chairman of the Board.
[22] Still continuing to pursue her quest for further information and now having been informed of her suspended privileges, the applicant on July 21, 2003 wrote to "Access to Information and Privacy Department - Correctional Services Canada" requesting copies of the reports or written communications authored by officers who were present during the incident of June 14. No reply was forthcoming so on August 21, 2003 the applicant wrote the Office of the Privacy Commissioner of Canada seeking a response to her request.
[23] Finally, on September 29, 2003, CSC wrote the applicant. They confirmed that the VRB hearings were not voice recorded or video taped and simply informed her that she was entitled to file a request and provide any corrections with respect to any error or omission in the record disclosed to her. No record was disclosed; all she received was a decision of the Board's meeting of July 9, 2004.
[24] In a letter dated February 24, 2004 the Office of the Privacy Commissioner for Canada wrote the applicant and confirmed that Correctional Services Canada had received her July letter and further confirmed that they had not replied until October 24, 98 days later.
[25] The Privacy Commissioner's letter went on: "Section 14 of the Privacy Act allows a government institution 30 days to provide a response to a request for access to personal information. In your case, the time limit set out in section 14 of the Act was not met. Your complaint, therefore, is well-founded."
[26] I am not condoning the applicant's conduct but I feel quite concerned with the manner in which CSC handled this review. Penal institutions are very familiar with tribunal activities within their walls. They are well aware of the fairness principle; they are well aware that parties who are to be subjected to some disciplinary action in an institution are entitled to know the case they have to meet. The procedure followed by the VRB has violated the duty to act fairly. I cannot provide a full remedy to this applicant since the issue is now moot but I feel justified in pointing out to this Board that fair procedure should be adhered to and some attempt should be made to accommodate the public. The total disregard for complying with the applicant's request for internal reports until some 98 days after she filed her request, the lacuna even being underlined by the Office of the Privacy Commissioner of Canada, does not in my view endear them in the public eye.
[27] The applicant requested a considerable amount for costs but, since she is not a solicitor, I am limited to estimate the expenses incurred and I am therefore awarding the applicant costs inclusive of disbursements which I hereby fix at $500.00.
JUDGE
OTTAWA, Ontario
October 22, 2004
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : T-1828-03
STYLE OF CAUSE : Susan Marie Soper v. Attorney General of Canada
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 7, 2004
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: October 22, 2004
APPEARANCES :
Susan Soper FOR THE APPLICANT
Edward Burnet FOR THE RESPONDENT
SOLICITORS OF RECORD :
None FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT