Montréal, Quebec, the 20th day of September 2005
Present: The Honourable Mr. Justice Martineau
BETWEEN:
Applicant
and
and
COMMISSIONER OF CORRECTIONAL SERVICE OF CANADA
and
ACTING DIRECTOR GENERAL OF
SECURITY DIVISION (CORRECTIONAL
SERVICE OF CANADA)
and
HEAD OF MISSION INSTITUTION
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
applicant Pierre-Paul Poulin is currently an inmate at the Mission Institution
in British Columbia. Although he is not blind, he has a serious visual
handicap. In fact, the applicant is a client of the Canadian National Institute
for the Blind (CNIB). In short, his visual condition, which is gradually
deteriorating, means that he needs specialized equipment and accessories and,
in particular, has difficulty watching television on his 14-inch monitor. For
this reason, the applicant prefers to watch television on his 22-inch computer
monitor using a TV tuner card. This method of operation allows him to read the
subtitles and any other text on the screen.
[2] Correctional Service Canada (the Service) did not dispute the fact that the applicant needs a personal computer on account of his vision problems and that the same handicap requires special accessories for his computer in order to accommodate his disability. However, the right or privilege of an inmate to have a personal computer equipped with certain peripheral equipment in his cell is not absolute. Since 1997, it has been regulated by Directive 090 of the Commissioner of Penitentiaries (the Commissioner), titled “Personal Property of Inmates” (Directive 090). This was amended in June 2003 to limit purchasing new computers and updating computers acquired by inmates prior to October 2002. Further, Directive 090 henceforth prohibited the possession of certain peripheral equipment, including TV tuner cards and storage units, features which had previously been authorized. These new restrictions or prohibitions were apparently related to growing security concerns on the part of the Service related to the development of computer technology.
[3] The application for judicial review at bar concerns the interpretation and application of Directive 090, and indeed its validity. The Court is also asked to consider the legality of several
subsequent administrative actions affecting the applicant which were taken by officers of the Service under the supposed authority of Commissioner’s Directive 090.
[4]
In fact, since 1997, the applicant has had a personal
computer equipped with a TV tuner card, an LS120 storage unit and
CD-ROM/DVD-ROM. However, in May 2004, the prison authorities confiscated the
applicant’s computer so as to remove the TV tuner card and LS120 unit, at the applicant’s expense. First, the
applicant submitted that these administrative actions affected acquired rights
which were protected by Directive 090 in the case of inmates who had been
authorized prior to October 2002 to have a non-compliant computer or peripheral
equipment. Second, the applicant submitted that these actions (and even
Directive 090 itself) were otherwise contrary to the equality right of all
individuals guaranteed by subsection 15(1) of the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
of the Canada Act, 1982 (U.K.), 1982, c. 11 (the Charter), and also
recognized by paragraph 4(e) of the Corrections and Conditional
Release Act, S.C. 1992, c. 20 (the Act). The respondents, on the contrary,
argued that these actions were expressly authorized by Directive 090 and that
the restrictions imposed on the applicant were not contrary to the Charter or
the Act.
PROCEDURAL OBJECTIONS
[5]
First,
the Court must dispose of two procedural objections raised by the respondents
in their memorandum and reiterated by their counsel at the hearing.
[6]
To
begin with, the respondents objected that the applicant had not identified the
decision of the federal board, commission or other tribunal which he wished to
submit for review by the Court, and further submitted that his application
involved several decisions made by different officers of the Service. These
grounds for dismissing the application for judicial review seem to the Court to
be in all respects specious and unfounded. The irregularities are of purely
technical, and the Court could in any event under the Rules allow them to be
corrected as the respondents do not suffer any harm thereby. It is clear that
the respondents have fully understood the purpose of the application for
judicial review at bar. In this connection, it is noted in paragraph 28 of
the respondents’ memorandum that [TRANSLATION] “the gist of the applicant’s
complaint is that officers of the Correctional Service incorrectly interpreted
Commissioner’s Directive 090 on several occasions (see decisions mentioned at
paragraphs 6, 8, 11, 17 and 19 of this memorandum) and deprived him of his TV
tuner card and storage unit. He claimed that he was entitled to his property
under the wording of Directive 090 and would like the Court to require the
Correctional Service to authorize him to keep these items among his personal
property”.
[7]
Secondly,
the respondents raised the issue of exhausting internal remedies. In this
connection, reference must be made to sections 74 to 82 of the Corrections
and Conditional Release Regulations, SOR/92-620 (the Regulations). These
provisions allow an offender who is dissatisfied with an action or decision by
a corrections officer to submit a written complaint to the officer’s
supervisor. If the supervisor then refuses to review his complaint or makes a
decision that does not satisfy the offender, he may submit a grievance. His
grievance may then be successively considered at one of the following three
levels: the first level – the institution head; the second level – the regional
head; and the third level – the Commissioner. It is clear here that the
applicant’s claims concerning the disputed peripheral equipment did not go
beyond the first or second level. That said, the respondents acknowledged that
the refusal to hear an application for judicial review on the ground that the
applicant has not exhausted the grievance procedure and should first have
applied to the Commissioner is a matter for the discretion of the Court.
[8]
In
view of the particular circumstances of this case, I feel it would be contrary
to the administration of justice to refuse to hear the application for judicial
review at bar or to dismiss it on the ground that the applicant did not exhaust
the internal remedies available to him. In the case at bar, concurrently with
the institution of these proceedings, the applicant in fact asked the Court to
first grant him leave to file and serve the application for judicial review at
bar beyond the usual 30‑day deadline mentioned in subsection
18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F‑7. In
this connection, I note that the applicant briefly referred to the issue of
exhausting internal remedies in the written arguments in support of his
application for leave. Although in their written argument the respondents
suggested several grounds for dismissing the applicant’s application for an
extension of time, those respondents did not expressly raise the issue of
exhausting internal remedies. On the contrary, the respondents by implication
admitted in their written arguments that filing a grievance at the second and
third levels would serve no useful purpose here. The respondents argued that
the computer had already been returned to the applicant on June 10, 2004,
without the TV tuner. Thus, in the respondents’ submission, in the
circumstances the legality of the decision by the officers of the Service or
the Commissioner to remove the TV tuners did not have to be decided. In short,
it was submitted at the time that the questions raised by the applicant had
become moot and that a decision by the Court would have no practical effect on
the rights of the parties. Objecting instead to the applicant’s failure to file
an application for judicial review at the time he learned of the new policy
prohibiting the use of TV tuners and other pieces of computer equipment, in
July 2003, the respondents accordingly argued that the applicant’s application
raised no serious question requiring a decision by the Court.
[9]
On
August 17, 2004, the Court allowed the applicant’s motion for an extension of
time. In his order, Shore J. mentioned that he had considered the written
arguments submitted by the parties on either side and had also taken into
account explanations regarding the needs and importance of general application
of the policy in the institution’s security. Noting also that the applicant
[TRANSLATION]
“may
need special accessories for his computer because of his particular situation,
in view of his serious visual disability, unique in itself”, my colleague said
he was satisfied that all the case law requirements for obtaining an extension
of time had been met (Grewal v. Canada (Department of Employment and
Immigration), [1985] 2 F.C. 263; Canada (Attorney General) v.
Hennely, [1999] F.C.J. No. 846 (F.C.A.) (QL)).
[10] That said, the application for judicial review at bar came on for hearing on the merits in this Court for the first time on May 26, 2005, following an order to set a date and time, dated March 11, 2005, made by Lutfy C.J. and signed by the judicial administrator. About ten days before the hearing, on May 13, 2005, counsel for the respondents sent the Registrar a letter in which she briefly requested that the Court accept the late filing of the respondents’ record, served on the applicant on the same day. On May 17, 2005, Rouleau J. exempted the respondents from filing and serving a motion record, authorized the filing of the respondents’ record and ordered that the hearing by conference call proceed as scheduled on May 26, 2005. In the meantime, the applicant filed an application for reconsideration, which was argued on a preliminary basis on May 26, 2005, before Blais J., who was presiding at the hearing on the merits.
[11]
On
the morning of the hearing on May 26, 2005, the Court made an order to adjourn.
Blais J. noted in this connection that the reasons put forward by the
applicant in his application for reconsideration were serious. However, he
noted that although the late filing of the respondents’ record was an
inconvenience, the applicant acknowledged he would suffer no undue harm if an
adjournment was granted to allow him to prepare properly for the hearing of the
application for judicial review. Accordingly, the Court decided to peremptorily
adjourn the hearing of the application for judicial review to August 18, 2005,
by conference call from Vancouver. That said, as the respondents never replied,
and as provided in Rules 317 and 318, on a request for material by the
applicant in his notice of application for judicial review, the Court also set
a deadline for this and indicated additional deadlines for the filing, if
necessary, of a supplementary affidavit by the applicant, affidavits in reply
by the respondents and the holding of examinations. Further, the Court ordered
the respondents to pay the applicant costs set at $500.
[12]
In
view of the various aforementioned orders by the Court, the actions of the
parties, the position initially taken by the respondents and all the
circumstances of the case, therefore, I consider that it is in the interest of
justice to hear the matter and dispose of the application for judicial review
at bar on the merits so as to permit a solution to the dispute that is fair and
as prompt and economical as possible, regardless of the possibility that there
may be internal remedies for challenging the administrative decisions disputed
by the applicant. In passing, I consider that the case at bar should be
distinguished from the decisions relied on by the respondents (Bordage v.
Archambault Institution, [2000] F.C.J. No. 1976 (F.C.T.D.) (QL); Giesbrecht
v. Canada, [1998] F.C.J. No. 621 (F.C.T.D.) (QL); Veley v. Fenbrook
Institution, 2004 FC 1571).
[13]
The
decisions cited above state that the grievance system set out in the Act, the
Regulations, Commissioner’s Directive 540 and his Standard Operating Practices
are an appropriate statutory procedure which should ordinarily be exhausted
before an application for judicial review is made, at least when the matter
involves a security rating or placement, including involuntary transfer from
one correctional institution to another. In the case at bar, the applicant
challenged the legality of certain administrative actions involving the use of
computers and computer equipment. Those actions had an ongoing effect over
time. In the case at bar, it was submitted by the respondents that the various
disputed actions taken by officers of the Service were authorized by the
Commissioner himself. Further, the applicant was also challenging the validity
of Commissioner’s Directive 090. The Commissioner is the third and final
national level. There is thus no internal appeal from the said decision.
Regardless of whether the Commissioner is a court of competent jurisdiction
within the meaning of section 24 of the Charter (we may recall here that the
applicant also argued that Directive 090 and the administrative actions taken
pursuant to it are contrary to the Charter), it is clear that if the applicant
had filed a grievance with the Commissioner the latter would then have been in
a conflict of interest, since he might eventually be called on to rule on the
scope and legality of his own decision. The grievance procedure confirms my
position. It states that no staff member concerned in a complaint or grievance
may review that complaint or grievance or decide on its validity.
[14]
Accordingly,
it is necessary to examine the merits of the application for judicial review at
bar.
MERITS OF APPLICATION FOR JUDICIAL REVIEW
[15]
First,
the respondents admitted that under subsection 15(1) of the Charter the
applicant is entitled to the same protection and benefit of the law, without
discrimination, and in particular discrimination based on physical disability.
In the same way, regardless of the fact that the applicant is suffering from a
visual disability, the respondents did not dispute that under sections 3
and 76 of the Act the applicant, as an offender, has the right to receive a
range of appropriate programs designed to meet his needs (and if possible
contribute to his social reintegration as a law-abiding citizen). Of course, it
is also admitted that in carrying out its general mandate the Service is guided
by the various principles mentioned in section 4 of the Act, including the one
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.
[16]
Further,
according to the uncontradicted documentary evidence in the record, the Service
also recognizes that computers may play an important part in the personal
development of inmates. That said, the Service must at the same time assess the
various risks associated with the presence of computers, peripheral equipment,
software and any other data processing material in inmates’ cells. This is the
context in which the Commissioner on February 17, 1997, amended
Directive 090 (as well as Directive 860, “Inmate’s Money”) to allow
inmates to have computers as their personal property. Following this amendment
to the institutional policy, the applicant could have a computer in his cell on
certain conditions: that is, the subject to supervisory measures, such as his
consent to legitimate and reasonable checks on the computer material and
software and the acceptance of certain rules regarding repairs and
improvements. Of course, by approving this policy the Commissioner did not
thereby relinquish his power to revise Directive 090 in the future, in
particular in light of technological developments and the impact that they
might have on the Service’s ability to make a reasonable assessment of risk.
[17]
In
due course, on September 30, 1998, again by an amendment to Directive 090, the
Commissioner altered his policy on computers to also authorize the use of
certain peripheral equipment which might include a video card for television or
computer signals (technical standards relating to Directive 090 ─
Inmate-Owned Computers). At that time, the applicant had among his authorized
personal property computer equipment that included a personal computer equipped
with a video card (TV), an LS120 storage unit and a CD-ROM/DVD-ROM. However, on
September 10, 1999, by an amendment to the technical standards
relating to the Directive 090, the Commissioner decided inter alia that
inmates could no longer obtain computers equipped with a TV tuner card. Nevertheless,
inmates already authorized to have such a card could keep it. That is the
applicant’s situation.
[18] The uncontradicted evidence submitted by the applicant (the respondents in fact submitted no detailed affidavit in reply to the applicant’s specific allegations) established on a preponderance that the applicant had a acquired right to use that questionable peripheral equipment. In this connection, it is worth noting that according to the applicant’s list of personal property, an official document from the penitentiary authorities, the LS120 unit, the CD-ROM/DVD-ROM and the TV tuner card were declared “exceptions” (“grandfathered to allow authorization”). Further, on April 9, 2002 the applicant sent a letter to the National Advisory Committee on Inmates’ Computers seeking a copy of the original technical standard providing that inmates with TV tuner cards before that standard came into effect could retain them in their cells. On May 3, 2002, the Senior Project Officer confirmed that the applicant could keep his TV tuner card, as provided by the technical standard of September 10, 1999.
[19]
That
said, on October 4, 2002, the Service ordered a moratorium on the purchase of
new software and the updating of computers in the inmates’ possession. On June
30, 2003, the Service lifted the moratorium. At the same time, inmates were no
longer authorized to purchase personal computers during the 30-day admission
period and any new purchase would be subject to the new provisions of Directive
090 (Appendix A). In this regard, the amended Directive stated in
Appendix A that for security reasons TV tuner cards and storage units
would henceforth be part of the prohibited peripheral equipment. However, the
new restrictions did not apply to equipment, software and peripheral devices
required to enable persons suffering from a visual or physical handicap to use
their computers, when the Regional Deputy Commissioner approved it.
Additionally, under the heading “Exceptions”, Appendix A did state that inmates
who were already authorized to have a non-compliant computer or peripheral
equipment could keep them despite the fact that they did not meet the
specifications set out in Appendix A. That is the applicant’s situation.
[20]
Soon
afterwards, around July 2003, the Head of the Mission Institution issued a news
release indicating that inmates having computers with video/TV cards should
take steps to remove them from the computers, and that only those who already
had computers before October 2002 would be authorized to keep them in accordance
with all the applicable policies and requirements. That said, on July 28, 2003,
Irving Kulik, Assistant Deputy Commissioner, Correctional Operations and
Programs, indicated in a letter to the applicant that [TRANSLATION] “Any
updating of your computer on account of your vision problems will be regarded
as an exception to the decision of the managing committee, which does not
authorize the updating of inmates’ computers”. At the same time, the author of
the letter also indicated that all video/TV cards installed in computers owned
by inmates should be removed, which presents a problem here as the applicant’s
acquired rights were clearly maintained by Appendix A of Directive 090 (under
the heading “Exceptions”).
[21] On August 18, 2003, the applicant received a memorandum telling him that he should take appropriate steps to remove the TV tuner card from his computer at his own expense in accordance with Directive 090 (Appendix A). On August 21, 2003, the applicant asked the Deputy Commissioner, Pacific Region, to grant him an exemption so he could keep his TV tuner card and purchase a wide screen television. On September 12, 2003, the applicant received a negative reply. However, during the same month the deputy head verbally agreed to an extension of the deadline being granted to the applicant. At the same time, the applicant received a stay in the implementation of the decision to remove the disputed peripheral equipment from his computer. In any event, on September 23, 2003, the applicant notified the Service head office that he was not objecting to removal of his TV tuner card from his personal computer, but refused to give up his LS120 storage unit. Despite the offer initially made by the applicant (who in fact later objected to the legality of removal of the two disputed peripheral devices and brought these legal proceedings), for several months the penitentiary authorities took no action. The prolonged inaction of the Service constituted a tacit acceptance of the argument that the applicant had acquired rights. Further, the lack of any specific action by the Service regarding the disputed peripheral equipment suggests that its continued use after July 2003 did not pose any reasonable risk. Moreover, the respondents filed no evidence to suggest that the possession of the disputed peripheral equipment by the applicant posed any risk whatever. Further, all general documentation relating to risk factors considered by the Commissioner, if any, in prohibiting or limiting the possession of computers and certain peripheral equipment (subject to acquired rights and exceptions currently contained in Appendix A of Directive 090), is currently unavailable and was excluded from the record prepared by the Court under Rules 317 and 318.
[22]
We
now come to the particular circumstances and specific administrative actions
taken in the winter and spring of 2004, which led the applicant to subsequently
apply to the Court in September 2004. To begin with, on February 6, 2004, the
head guard, Don Havelin (CCO), told the Mission Institution inmates’ committee
that inmates having TV tuner cards should take the necessary steps to remove
those TV tuner cards from their computers. On February 9, 2004, the applicant
sought a new extension of time. The applicant indicated that he could not remove
his TV tuner card since he needed it to prepare legal documents. On March 4,
2004 the Head of the Mission Institution informed the applicant she was
allowing him until April 29, 2004 to have his TV tuner card removed, so he
could complete his legal documents. In the meantime, on March 10, 2004, the
applicant received a communication from counsel for the respondents about an
order for an interlocutory injunction sought by the applicant in Pierre-Paul
Poulin v. A.G. (Canada), T-2006-02. In the latter case, the applicant
wished to prevent the seizure of his computer by the Service. The communication
in question indicated that the applicant’s computer would be seized on
April 29, 2004 on account of his refusal to comply with the order by
the competent authorities of the Service. In any case, on April 13, 2004 the
applicant asked the acting Head of the penitentiary whether he could retain his
computer until July 15, 2004. On May 6, 2004 the Institutional Head refused to
allow the applicant to retain his computer until July 15, 2004. He insisted on
the applicant immediately taking the necessary action to remove his TV tuner
card and LS120 storage unit from his computer.
[23]
On
May 7, 2004, the applicant wrote the Institutional Head to repeat his objection
to removing the storage unit from his computer. In the same letter, he agreed
to remove his TV tuner card. On May 10, 2004, the applicant wrote Diane
Mousouliotis, deputy Institutional Head, to suggest a date on which his
computer could be sent to the supplier to have its TV tuner card removed. He
still objected to removal of the storage unit. On May 14, 2004 the deputy
Institutional Head notified the applicant that his storage unit would be
removed from the computer. On May 16, 2004 the applicant once again
wrote the Institutional Head asking to be allowed to retain his computer until
July 15, 2004. After May 17, 2004, the applicant sent a number of letters to
Mr. Kulik regarding certain technical problems relating to his computer.
For example, the applicant sought permission to update Windows operation
software on his computer because the new software available for visually
handicapped persons required the XP version of Windows. Despite the favourable
reply which he received from M. Kulik dated July 28, 2003, the applicant’s
application to update his operating system was denied by the penitentiary
authorities on the ground that it was not a [TRANSLATION] “repair”, which was
authorized, but rather an [TRANSLATION] “updating”, which was prohibited by
Commissioner’s Directive 090 (Appendix A). However, the Service authorized
the applicant to obtain the secondary programs Dragon Naturally Speaking,
Biblirom Larousse and Encarta so he could have access to his computer. In any
case, the applicant also sent a number of letters regarding the LS120 unit and
the obtaining of a larger monitor. The applicant received a negative response
based on the fact that such a monitor required the use of a TV tuner card,
equipment which since July 2003 had been prohibited by Commissioner’s Directive
090 (Appendix A). The applicant subsequently made a second request regarding
his operating system, this time to obtain the French version of Windows XP. To
date, the applicant has received no reply. That said, it was not until May 31,
2004, that the Mission Institution authorities finally decided to confiscate
the applicant’s computer in order to remove the TV tuner card (TV card) and
LS120 unit from his computer, at the applicant’s expense. The removal costs
borne by the applicant were $139.08. The value of the LS120 unit and TV tuner
card amounted to $505.99. On June 10, 2004, the applicant’s computer was
returned to him without the problematic peripheral equipment.
[24]
The
validity of the aforementioned administrative actions and of Directive 090 were
defended by counsel for the respondents. As mentioned earlier, the applicant
obtained leave from the Court to file these proceedings, which were filed and
served in September 2004 after the 30-day deadline specified in subsection
18.1(2) of the Federal Courts Act, supra. First, the respondents
maintained that sections 3, 4 and 76 of the Act did not prevent the
Commissioner from prohibiting TV tuner cards and storage units. Second, the
respondents also argued that Directive 090 does not as such infringe subsection
15(1) of the Charter. In their submission, the applicant did not discharge the
burden of showing the Court that the purpose or effect of the provision was to
impose different treatment between persons or classes of persons on account of
a personal characteristic, namely visual disability. The respondents maintained
that the directive in question prohibited all affected persons, namely inmates
in federal penitentiaries, from using TV tuner cards. According to the
respondents, no distinction was apparent simply from reading the directive.
Further, the respondents noted that the prohibition did not create an indirect
distinction between certain groups of inmates. In fact, they maintained that
inmates suffering from visual handicaps were not placed at any greater
disadvantage by the prohibition than other inmates. In any event, the
respondents considered that the applicant did not need the TV tuner card to use
his computer. They noted that the applicant used the said card only for
watching television. In their submission, the applicant could always obtain a
large-screen TV in order to watch television.
[25]
I
have come to the conclusion that the application for judicial review at bar
should be allowed. First, I cannot accept the respondents’ argument. I note, to
begin with, that a significant portion of the respondents’ argument was not
based on facts in evidence nor on a reasonable and coherent interpretation of
the prohibitions and exceptions found in Directive 090. Secondly, it is
apparent here that the penitentiary authorities acted perversely or
capriciously by confiscating the applicant’s computer in order to remove the TV
tuner card and LS120 storage unit. Based on the conclusion I have arrived at
regarding the application and scope of the exception contained in Appendix A of
Directive 090, protecting the applicant’s acquired rights, it is not necessary
to base my reasoning on the questions of equality and discrimination against
inmates suffering from a visual handicap, which were argued at the hearing by the
parties.
[26] In order to dispose of the application for judicial review at bar, therefore, only the following additional comments are needed. First, the adoption of a coherent and predictable policy on staff safety, and even on the safety of the prison population, is of cardinal importance in the penitentiary system. Directive 090, dealing with the possession of computers with certain peripheral equipment in cells, is thus very important. Any means of communication between inmates, or even between inmates and persons from outside the penitentiary, is clearly unacceptable. That is why the bringing in of new computers and peripheral equipment must be scrupulously controlled by the Service. The Commissioner’s general concerns are thus legitimate, in view of the breathtaking speed at which the data processing field is evolving. The basis for the current limitations is not known to the Court, but I imagine it has to do with a data processing concern such as the power of computers after that date. I can only speculate as to the specific reasons the Commissioner may have had in prohibiting the purchase of new computers after October 2002 and limiting the use of peripheral equipment previously authorized. The respondents chose not to file any affidavit from the persons responsible for adopting and implementing Directive 090. At the same time, Directive 090 also recognizes that certain individuals suffering from visual or physical handicaps need in certain circumstances to use peripheral equipment and software developed for their requirements. That is the applicant’s situation. Thus, I do not have to decide here whether the loss of the disputed peripheral equipment in the case at bar is an infringement of the equality right claimed by the applicant on account of his visual disability. In any case, the current policy authorizes the possession of non-compliant computers and peripheral equipment in the case of inmates who obtained leave before October 2002 to keep them. That is the applicant’s situation. The Commissioner undoubtedly may choose in future to cancel any acquired right of the applicant and other inmates, by again amending
Directive 090, but I do not have to
decide at this time whether such a decision would be legal. Suffice it to say
that Directive 090 currently recognizes the applicant’s acquired rights.
[27]
In
the case at bar, according to the applicant’s list of personal property, he
clearly obtained permission from the competent penitentiary authorities prior
to October 2002 to have the LS120 unit and the TV tuner card in his cell. In
fact, it is even indicated that the said peripheral equipment was
“grandfathered”. For these reasons, I consider that the removal of the LS120
unit and TV tuner card by the prison authorities was contrary to the Act and to
the applicant’s acquired rights. (Additionally, the applicant withdrew his
claims regarding the CD-ROM/ DVD-ROM unit, so that its return does not have to
be considered here.) The applicant clearly had a acquired right recognized by
the said policy and that right must be respected, despite the fact that it is a
departure from the general policy, since that was the Commissioner’s intention
expressed in the part titled “Exceptions”. The Commissioner’s policy must be
interpreted as a whole and all the provisions of Directive 090 must be
interpreted so as to have logical effect. Accordingly, I cannot accept the
respondents’ argument. The application at bar must thus be allowed and the
Service ordered to replace the TV tuner card and LS120 storage unit which the
applicant had before their illegal removal in May 2004 in the applicant’s
computer at the expense of the Service.
[28]
In
concluding, this is clearly a case in which an order for costs in the
applicant’s favour is proper. Considering all the relevant factors, including
the actions of the respondents, I feel that costs should be set at $1,500, and
the sum of $500 expenses already ordered by the Court will be added to this.
ORDER
THE COURT ALLOWS the application for judicial review and ORDERS the Correctional Service of Canada, at its own expense, to replace in the computer of the applicant Pierre-Paul Poulin the TV tuner card and LS120 storage unit which he had before they were illegally removed in May 2004; with costs to the applicant, which are set at $1,500, to be added to the $500 costs already ordered by the Court.
Judge
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1628-04
STYLE OF CAUSE: Pierre-Paul Poulin v. Attorney General of Canada et al.
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: August 18, 2005
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Martineau
APPEARANCES:
Pierre-Paul Poulin FOR THE APPLICANT FOR HIMSELF
Richard Casanova FOR THE RESPONDENTS
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE RESPONDENTS
Deputy Attorney General of Canada
Ottawa, Ontario