Date: 20000719
Docket: T-1838-99
BETWEEN:
ALLAN ARTHUR CRAWSHAW
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
GIBSON, J.
INTRODUCTION
[1] The applicant seeks judicial review of a decision of the inmate trust fund review committee (the "ITFRC") at Mission Institution, a penitentiary operated by the Correctional Service of Canada (the "Service"), in the Fraser Valley in British Columbia, refusing his application to have funds withdrawn from his inmate trust fund account to renew his subscription to the magazine "Scientific American". The refusal, which simply indicates "Not approved. Contrary to Policy", is undated. It was delivered to the applicant on the 13th of October, 1999. The decision under review constituted the second refusal of a request by the applicant to utilize his inmate trust funds to renew his subscription to Scientific American within a matter of less than four months. The applicant"s subscription to Scientific American extended back to 1995.
[2] I dealt with this application for judicial review on the basis of material filed with the Court, and without the benefit of an oral hearing, as a result of an Order of this Court dated the 29th of February, 2000 directing that the application for judicial review be disposed of without personal appearance.
BACKGROUND
[3] The applicant was convicted of first degree murder in 1993. He has been an inmate of Mission Institution since shortly after his conviction. At the date of his affidavit filed in this matter, the applicant was 52 years old. Under the terms of his sentence, he will not be eligible for day parole until the 17th of May, 2015.
THE LEGISLATIVE FRAMEWORK
[4] Section 3 of the Corrections and Conditional Release Act1 (the "Act") prescribes the purpose of the federal correctional system in the following terms:
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
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
Section 4 enunciates principles to guide the Service in achieving the purpose referred to in section 3. Among those principles is the following:
e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence;
e) le délinquant continue à jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux don"t la suppression ou restriction est une conséquence nécessaire de la peine qui lui est infligée;
[5] Section 96 of the Act provides that the Governor in Council may make regulations for a broad range of purposes relating to the administration of the federal correctional system. Section 97 authorizes the individual having, subject to the direction of the Solicitor General of Canada, control and management of the Service (the "Commissioner"), to make rules for the management of the Service, for purposes related to the principles described in section 4 of the Act "...and generally for carrying out the purposes and provision of [Part I of the Act ] and the regulations". Section 98 provides that the Commissioner may designate as "Commissioner"s Directives" any or all of the rules made under section 97. Section 98 further provides that such Directives "...shall be accessible to all offenders, staff members and the public".
[6] Subsection 111 (1) of the Corrections and Conditional Release Regulations2 provides as follows:
111. (1) The Service shall ensure that all moneys that accompany an inmate when the inmate is admitted into a penitentiary and all moneys that are received on the inmate's behalf while the inmate is in custody are deposited to the inmate's credit in a trust fund, which fund shall be known as the Inmate Trust Fund.
111. (1) Le Service doit veiller à ce que l'argent que possède le détenu à son admission au pénitencier et les sommes reçues par lui pendant son incarcération soient déposés à son crédit dans un fonds de fiducie, connu sous le nom de Fonds de fiducie des détenus.
[7] Sections 41 and 42 of Commissioner"s Directive 090, dated the 20th of August, 1999 and relating to "Personal Property of Inmates" provide as follows:
| 41. Institutions shall establish a list of businesses from which inmate purchases shall be made. The institutional head or a delegate not below the Assistant Warden level shall approve purchases from any other business. |
| 42. Normally, purchases from other countries shall not be allowed. Such purchases may be made with the approval of the institutional head. |
[8] Section 42 of Commissioner"s Directive 090 is at the heart of this matter. The first sentence of that section is the authority cited for rejecting the applicant"s request to have his funds used to renew his subscription to Scientific American. The address for subscription renewals to Scientific American is in the United States.
ISSUES
[9] The issues on this application for judicial review were identified by the applicant in his Application Record in the following terms:
| A. Did the ITF Review Committee at Mission Institution act without jurisdiction by violating any laws in preventing the applicant from subscribing to the educational publication Scientific American like any other member of society? |
| B. Did the ITF Review Committee ...fail to observe a principle of natural justice, procedural fairness or other procedure that [it] was required by law to observe, in preventing the applicant from subscribing to the educational publication Scientific American like any other member of society? |
| C. Did the ITF Review Committee ... err in law in making a decision or an order, whether or not the error appears on the face of the record, in preventing the applicant from subscribing to the educational publication Scientific American like any other member of society? |
| D. Did the ITF Review Committee ...[base] its decision or order on an erroneous finding of fact in preventing the applicant from subscribing to the educational publication Scientific American like any other member of society? |
| E. Did the ITF Review Committee ...act in any other way that was contrary to law in preventing the applicant from subscribing to the educational publication Scientific American like any other member of society? |
| F. Do members of the public and inmates expect correctional employees to perform their duties in a legal and responsible manner?" |
[10] The respondent essentially adopted the foregoing statement of issues, albeit in somewhat prolix terminology, except that she ignored the sixth issue identified by the applicant. The Court will also ignore the sixth issue.
[11] By direction dated the 19th of June, 2000, the Court requested the respondent to address an issue that I consider to be encompassed within issue E, that being, whether the ITFRC at Mission Institution "refused to exercise its jurisdiction" (paragraph 18.1(4)(a) Federal Court Act ) by apparently failing to consider whether the applicant"s request that funds from his inmate trust account be used to renew his subscription to Scientific American fell within the exception to section 42 of Commissioner"s Directive 090 in that it was a "legitimate" request for a "purchase" from outside Canada, of a subscription likely not "purchasable" in Canada, and therefor not within the "normally" prohibition.
ANALYSIS
[12] I accept the applicant"s submission implied from his statement of issues quoted above that the publication Scientific American is an "educational publication" or, at the very least, not in any sense a periodical that could be considered "inciteful" or advocating or likely to create an adversarial climate in the correctional setting that might be counter-productive to good-order or offender rehabilitation. Nor could it be considered to be "subversive" to the Service3.
[13] In response to the Court"s request for submissions on possible failure to exercise jurisdiction, counsel for the respondent summarized the respondent"s position in the following three paragraphs:
| The decision of the institutional head, or a delegate, in this case the Inmate Trust Fund Board (the "Board"), to approve a purchase from outside the country is a discretionary one. However, before the decision can be considered by the Board, the Inmate must take the step of requesting the Board to approve the purchase, and submitting information to demonstrate why the purchase should be approved. |
| Mr. Crawshaw [the Applicant] did not make a request to the Board to approve the purchase, and he did not submit any further information about his proposed purchase. The Board therefor did not have a request or the information before it to cause the Board to consider whether Mr. Crawshaw"s request was not within the "normally" prohibition in paragraph 42 of Commissioner"s Directive 090. |
| The Board therefor did not refuse the exercise its jurisdiction in making the decision to deny the purchase of the subscription to Scientific American. |
[14] With great respect, I conclude that the applicant did make a request to make the purchase, through the renewal of his subscription to "Scientific American", in his "Inmate"s Request to Encumber/Disburse Funds", directed to the "institutional head", presumably of the institution in which he was incarcerated, Mission Institution4. In that form, he requested that the sum of $49 in U.S. funds "...be encumbered/or disbursed" from his current account with the cheque to be made payable to Scientific American at an address in the United States given on the form. He indicated that the reason for his request was "educational". I am satisfied that that brief explanation was sufficient demonstration of why the purchase should be approved, if any such "demonstration" was indeed required. In an attached letter or memorandum directed to "ITF Review Committee, Mission Medium Security Institution", the applicant wrote: "I have the right under Canadian law to subscribe to this magazine and have been subscribing to this educational magazine since 1995. This Committee has absolutely no jurisdiction under the law to refuse to process my ITF...". The applicant"s view that the ITFRC had "absolutely no jurisdiction under the law to refuse to process his [request]" was, I am satisfied, a position that is at least arguably consistent with section 3 and paragraph 4 (e) of the Corrections and Conditional Release Act quoted above.
CONCLUSION
[15] Considering all of the foregoing, and in particular the purpose of the federal correctional system enunciated in section 3 of the Corrections and Conditional Release Act and the related principle set out in paragraph 4(e) of that Act, based upon the failure of the ITFRC in conjunction with the "institutional head", to exercise the jurisdiction conferred on it by section 42 of Commissioner"s Directive 090, I conclude that this application for judicial review should be allowed. In the circumstances, I decline to consider the range of other issues raised in the application for judicial review.
[16] I note that, before bringing this application for judicial review, the applicant did not exhaust the grievance process presumably available to him within the Correctional Service of Canada. While this factor is noted in the respondent"s memorandum of fact and law filed in this matter, it was not raised by the respondent as an issue on this application for judicial review. The applicant has used the complaints and grievances system within Mission Institution extensively since his admission there, with relatively limited success. By contrast, to this judge"s knowledge, he has once before come to this Court on a matter not dissimilar to the subject matter of this application for judicial review. I am satisfied that it would not be in the interests of justice for the Court itself to refuse to consider this application based upon the applicant"s failure to exhaust the possibility of alternative remedies within the Service. That being said, by granting this judicial review, this Court should not be taken to endorse in any way the circumvention of established channels for dispute resolution.
COSTS
[17] The applicant seeks his costs on this application for judicial review and, I am satisfied, with some justification. An order will go in favour of the applicant requiring the respondent to pay to him his reasonable out of pocket expenses reasonably incurred on this application. If the parties cannot agree on the quantum of reasonable out of pocket expenses reasonably incurred, that issue should be referred back to this Court for determination.
_________________________
J.F.C.C.
July 19, 2000
Ottawa, Ontario
__________________3 See: Crawshaw v. Commissioner of Corrections (Can.), (1996), 125 F.T.R. 241.
4 Applicant"s Application Record, exhibit "7"to the applicant"s affidavit sworn the 2nd of November, 1999.