Ottawa, Ontario, October 16, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JOHN JAMES ST. JEAN,
RICHARD ARLISS FOX,
NEIL ROBERT SIMPSON AND
SHELDON KENNETH SHALER
and
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] Justice Blanchard had issued an interlocutory injunction prohibiting Correctional Service Canada (CSC) from allowing the temperature at the Temporary Detention Unit (TDU) at Matsqui Institution to drop below 20 degrees Celsius between the hours of 08:00 a.m. and 12:00 midnight and 16 degrees Celsius between the hours of 12:00 midnight and 08:00 a.m. pending the final disposition of this application for judicial review. This is the judicial review which underlies Justice Blanchard’s decision in which he found the serious issue to be whether the Applicants were required to use the internal complaint procedure before applying to this Court for relief.
II. FACTUAL BACKGROUND
[2] The TDU is a holding area in the Matsqui Institution which holds parolees who have been returned to custody as a result of parole violations. Typically, inmates in the TDU spend a short period of time in the unit ranging from a few days to a few weeks.
[3] The Applicants, with the exception of St. Jean, have been relocated to other facilities and none are in the TDU. The Applicants attempted to suggest that some of them might be transferred back to the TDU – an entirely speculative assertion. The purpose of the argument is to suggest that the issue in this case is not academic. Given the nature of TDU inmate holdings, the principles in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, would apply and the Respondent quite properly does not seek to strike this judicial review on the grounds of mootness.
[4] The problem related to the TDU is systemic and could possibly apply to a number of current and potential inmates. The problem is that because inmates smoke in their cells, contrary to an unenforced policy of CSC, the unit has to be ventilated to clear the smoke. Apparently, there are no fans to accomplish this task.
[5] In order to ventilate the TDU, the doors of the unit have to be opened. This, the Applicants say, is done with such persistence and regularity that the unit becomes unhealthily cold. As well, the inmates are denied extra blankets or clothing to keep them warm during these periods – particularly in winter – when the TDU becomes very cold. It is alleged that the rear doors of the unit are kept open all day and sometimes all night – the suggestion is that this is done for purposes of causing more discomfort than is necessary to rid the TDU of smoke.
[6] A number of the Applicants suffer from illnesses (i.e. HIV/AIDS or Hepatitis C) which makes them particularly sensitive to cold and where the cold aggravates their illness.
[7] The Applicants submitted evidence from Environment Canada showing that between December 2006 and mid-March 2007 temperatures could range from the low-teens Celsius to as low as -12 degrees, although typically in the range of 0 degrees.
[8] The Applicants submitted their direct evidence which was not directly challenged. This evidence included the allegation that they were denied permission to wear outdoor clothing indoors, that additional clothing/blankets were denied and that oral and written complaints were not acted upon.
[9] The Respondent’s evidence was from the Acting Correctional Supervisor of the TDU, who addressed the real health need to ventilate the unit of smoke, the difficulty created by inmates smoking indoors (there is no outdoor “no smoking” policy yet) and that extra clothing and blankets were offered to inmates. The affiant’s evidence consisted of substantial hearsay evidence without any indication of the source of such evidence, including the absence of any complaints from inmates.
[10] Justice Blanchard issued his order on substantially the same evidence regarding the inmates’ complaints as was before this Court, particularly as the evidence relates to the harm experienced by the Applicants and other inmates. Justice Blanchard’s order was in effect during the winter of 2007 and there is no evidence that it was not effective or overly burdensome to comply with.
[11] There was some suggestion put forward by the Respondent’s counsel that a new policy imposing a complete smoking ban would be imposed by April 2008 which would eliminate the need to ventilate the TDU. No direct evidence on this point was put forward but I accept counsel’s word that such a ban may be forthcoming. The future imposition of this ban only affects the scope of the remedy.
[12] The Respondent’s legal obligation to provide a safe and healthy environment for inmates and staff are set forth in ss. 70, 86 and 87 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA). Section 70 reads:
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70. The Service shall take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity. |
70. Le Service prend toutes mesures utiles pour que le milieu de vie et de travail des détenus et les conditions de travail des agents soient sains, sécuritaires et exempts de pratiques portant atteinte à la dignité humaine.
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[13] It is axiomatic that people need heat in winter – a concept not likely to be challenged. The duty to provide a safe and healthy living environment includes providing adequate heat.
[14] The obligation imposed on CSC to provide a healthy environment is set forth particularly in s. 83 of the Corrections and Conditional Release Regulations, S.O.R./92-620 (Regulations):
[15] When disputes arise between the CSC and an inmate, the Regulations provide for a complaints and grievance process in ss. 74-82 (attached as Annex A to these Reasons). Particularly germane to this judicial review is s. 81 which contemplates an inmate pursuing both the complaints and grievance process as well as other legal remedies.
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81. (1) Where an offender decides to pursue a legal remedy for the offender's complaint or grievance in addition to the complaint and grievance procedure referred to in these Regulations, the review of the complaint or grievance pursuant to these Regulations shall be deferred until a decision on the alternate remedy is rendered or the offender decides to abandon the alternate remedy.
(2) Where the review of a complaint or grievance is deferred pursuant to subsection (1), the person who is reviewing the complaint or grievance shall give the offender written notice of the decision to defer the review. |
81. (1) Lorsque le délinquant décide de prendre un recours judiciaire concernant sa plainte ou son grief, en plus de présenter une plainte ou un grief selon la procédure prévue dans le présent règlement, l'examen de la plainte ou du grief conformément au présent règlement est suspendu jusqu'à ce qu'une décision ait été rendue dans le recours judiciaire ou que le détenu s'en désiste.
(2) Lorsque l'examen de la plainte ou au grief est suspendu conformément au paragraphe (1), la personne chargée de cet examen doit en informer le délinquant par écrit.
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[16] The Applicants’ evidence is that at least one of them filed a written complaint, others made oral complaints and yet others were told that the complaints process did not apply to inmates in the TDU because they were considered members of the outside community – presumably because they were parolees. In any event, no action was taken on those complaints made until counsel became involved, late in the process.
[17] The Applicants contend that the CSC violated the CCRA and Regulations, violated their s. 7 and s. 12 Charter rights and violated the Canadian Human Rights Act (CHRA). The Respondent, aside from denying any violation and/or jurisdiction in this Court to consider the rights issues under the Charter and CHRA, says that this Court should decline jurisdiction to hear this matter because of the existence of a grievance procedure.
III. ANALYSIS
[18] The principal issue is whether the Court should decline to hear this matter because the Applicants did not utilize the internal complaints process. This is an issue of law which concerns this Court’s jurisdiction and an interpretation of the legislation. As such, the standard of review is correctness.
[19] Although standard of review was not a particular focus of this judicial review, to the extent that the Court must consider the actions and decisions of the CSC officials in respect of the matter of ventilating the TDU, the standard of review is reasonableness. The Regulations, in s. 81, contemplate alternative remedies other than the complaint process, which suggests low deference. The specifics of when and how to maintain healthy conditions engages the expertise of CSC officials and therefore suggests greater deference. However, the particular issue, the temperature and availability of clothes and blankets, is largely a rights-based dispute and suggests less deference. Finally, the dispute is one of mixed law and fact which again suggests reasonableness. All of these factors taken together lead to the conclusion that, in these circumstances, the standard of review is reasonableness.
A. Violation of CCRA – Complaints Process
[20] On the substantive matter of whether there was a breach of the obligation to provide a healthy environment – particularly that of heat in winter - the evidence is contradictory. The Court is mindful of the incentives and motives of persons in the position of the Applicants to make fanciful allegations. However, the allegations have a sufficient “ring of truth” that they must be assessed on the basis of the evidence in respect of each allegation.
[21] The allegations are that the rear doors of the TDU were left open, that the cells became cold and that blankets and outdoor clothing were not made available or permitted. These allegations are supported by affidavit of first-hand witnesses.
[22] The difficulty with the Respondent’s contrary evidence is that it is so remote that it does not substantially rebut the Applicants’ case. There was no evidence from persons who were present, e.g. guards, to counter the Applicants’ evidence.
[23] Justice Blanchard accepted that the harm claimed by the Applicants occurred and I see no reason to depart from that finding particularly where the record on this aspect is largely the same.
[24] Having concluded that the Applicants had at least a ground of complaint, the issue is whether this matter should be dealt with by this Court in light of the existence of a comprehensive grievance procedure mandated by the Regulations.
[25] Justice Pelletier, while on the Trial Division, in Marachelian v. Canada (Attorney General) (T.D.), [2001] 1 F.C. 17, had to deal with a similar issue. The learned judge recognized that there had to be exceptions to the general rule that an inmate had to exhaust internal remedies before seeking Court relief.
[26] In my view, the Court should not lightly interfere with the complaints process. There are strong policy and statutory reasons for requiring inmates to use this process. It is in cases of compelling circumstances, such as where there is actual physical or mental harm or clear inadequacy of the process that a departure from the complaints process would be justified (this is not an exhaustive list of the circumstances justifying departure from the usual process).
[27] As recognized in May v. Ferndale Institution, [2005] 3 S.C.R. 809, the complaints process is not a complete statutory code. While not dealing with freedom issues, as in Ferndale, the Court is faced with health issues which are serious matters. In addition, the factual background as to cold temperatures in the TDU is not substantially challenged which gives credence to the health concerns brought on by cold temperatures.
[28] As outlined earlier in these Reasons, s. 81 specifically contemplated an inmate seeking alternative legal remedies to those internal remedies. It is consistent with this regulatory scheme that, where there are urgent substantive matters and evident inadequacy in the internal procedures, it is open to the Court to consider the issue of remedial action.
[29] Because there are potential health issues and that the problems are seasonal, there is a need to resolve these complaints quickly. The prison complaint process has been criticized as slow and inadequate – see the Annual Report of the Office of the Correctional Investigator 2005-2006 and the Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston by the Honourable Louise Arbour.
[30] While there is a process for “prompt” action on complaints to shorten the usual grievance process of 6-12 months, the process is uncertain and depends to some extent on how the complaint is classified by CSC. This particular complaint is classified by the Respondent as one related to temperature and therefore not of great priority. The Applicants classify it is one of health deserving of greater priority.
[31] In submissions, not rebutted, the Applicants contend that priority complaints can take up to six months to resolve and, at a minimum, 12 weeks to process. Persons held in the TDU, such as the Applicants, are held there for less than this minimum time, making the complaint process for any such complainant academic. The Respondent has not shown that the complaint process is adequate in these circumstances.
[32] Any alternative remedy must be timely and effective. There is no evidence that in respect to this complaint, or even complaints of a similar type, the process meets either criterion.
[33] Lastly, there is no assurance that complaints will be acted upon. There is evidence that these complaints were not. Four of the five Applicants claim that they complained – sometimes orally, sometimes in writing. Recognizing the frailties inherent in this type of allegation, the Respondent has presented no evidence that directly challenges these events or even the plausibility that these complaints were made. There is no evidence of a mechanism that assures that complaints reach the responsible person.
[34] The Court is left in the position, if the Respondent’s submissions are accepted, of rejecting sworn evidence, not challenged or rebutted with plausible contrary evidence. One could ask rhetorically – on what basis would the Court reject this sworn evidence other than its sense that such allegations are easy to make and that there is motive to do so?
[35] In my view, this is a thin basis for rejecting evidence. The Applicants are no longer in the TDU and gain nothing from pursuing their complaint. If they are successful, the most that is achieved is a continuance of Justice Blanchard’s order that other inmates in the TDU receive heat in winter - hardly a motive for perjury.
[36] In all these circumstances, I find that this is a proper case for departing from the requirement to follow the complaint process. I further find that based on a balance of probabilities, the Applicants’ complaint is made out and that the Respondent failed to meet its statutory obligations and did not behave reasonably.
[37] Given that Justice Blanchard’s interim order was effective, it should be continued with minor adjustment. The Respondent rightly is concerned that even a minor deviation from the temperature settings could be a breach of a court order. Therefore, a materiality provision will be inserted in the final order.
[38] In the event that the Commissioner imposes a policy which eliminates the need to ventilate the TDU or there are other substantial changes of circumstance, the Respondent may apply to vacate this Order.
B. Charter
[39] Given the result in this case, it is not necessary to decide the Charter aspect of this judicial review. This is not a case where the Charter issue had to be raised first with the Commissioner; however, this is a case which can be decided without deciding a constitutional matter. The established jurisprudence is that in such instances, a court should decline to pronounce on Charter rights. (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3)
C. Canadian Human Rights Act
[40] The Applicants would have this Court make a finding that there is a breach of rights under the CHRA without that matter proceeding to the Canadian Human Rights Commission. Even if the Court has jurisdiction, I would decline to exercise it because the Applicants can complain to the Commission and because this Court has granted relief which addresses the core of the Applicants’ complaint.
IV. CONCLUSION
[41] The Applicants’ judicial review for a declaration and mandatory injunction will be granted upon terms contained in the Judgment. The Applicants shall have their costs as per the Judgment.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The Respondent, through Correctional Service Canada, has failed to meet the requirements of s. 86(1)(a) and 87(a) of the Corrections and Conditional Release Act and s. 83 of the Corrections and Conditional Release Regulations from approximately December 8, 2006 until the order of Justice Blanchard dated February 2, 2007.
2. Until this Order is varied or rescinded, Correctional Service Canada is prohibited from allowing the temperature at the Temporary Detention Unit at Matsqui Institution in Abbotsford, British Columbia, to drop, materially or for any significant period of time, below 20 degrees Celsius between the hours of 08:00 a.m. and 12:00 midnight and 16 degrees Celsius between the hours of 12:00 midnight and 08:00 a.m.
3. The Applicants shall have their costs in accordance with Column V of the Federal Court Tariff.
ANNEX A
Corrections and Conditional Release Regulations, S.O.R./92-620
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2284-06
STYLE OF CAUSE: KENNETH ADAM GATES, JOHN JAMES ST. JEAN, RICHARD ARLISS FOX, NEIL ROBERT SIMPSON AND SHELDON KENNETH SHALER
and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 4, 2007
APPEARANCES:
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Ms. Jennifer Metcalfe
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Ms. Susanne Pereira
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SOLICITORS OF RECORD:
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PRISONERS’ LEGAL SERVICES Barristers & Solicitors Abbotsford, British Columbia
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia |