Date: 20000427
Docket: T-1859-98
Ottawa, Ontario, Thursday, April 27, 2000
| Before: FRANÇOIS LEMIEUX J. |
Between:
GILLES LALIBERTÉ,
Plaintiff,
- and -
COMMISSIONER OF CORRECTIONAL SERVICE CANADA
- and -
ATTORNEY GENERAL OF CANADA,
Defendants.
ORDER
For the reasons stated, the application for judicial review is dismissed.
| François Lemieux JUDGE |
Certified true translation
Martine Brunet, LL. B.
Date: 20000427
Docket: T-1859-98
Between:
GILLES LALIBERTÉ,
Plaintiff,
- and -
COMMISSIONER OF CORRECTIONAL SERVICE CANADA
- and -
ATTORNEY GENERAL OF CANADA,
Defendants.
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
[1] In the case at bar the plaintiff, an inmate at the Drummond Institution, is asking this Court to review a decision made by the Assistant Commissioner, Organizational Development, of Correctional Service Canada on September 4, 1998 pursuant to the filing of a third level grievance. In his decision the Assistant Commissioner arrived at the conclusion that the plaintiff could not participate in the private family visiting program as provided in Commissioner"s Directive No. 770 (hereinafter "the Directive") dated January 24, 1997.
FACTS
[2] The plaintiff is currently serving a life sentence at the Drummond Institution located in Drummondville, province of Quebec. He says he is a homosexual and has had a emotional relationship with an inmate, Philippe Mayer, since some time in September 1997: the latter has shared the same cell as himself since September 1997. Because of the building regulations regarding single and double occupancy applicable in the institution, the plaintiff and his fellow inmate Mr. Mayer cannot have sexual relations except in a private family visit. Accordingly, in April 1998 the plaintiff made an application to participate in the private family visiting program so he would have the opportunity of having intimate relations with Mr. Mayer.
[3] In May 1998 the plaintiff was told that his application to participate in the private family visiting program had been rejected: on May 6, 1998 he filed a first level grievance with the Drummond Institution head to challenge the rejection of his application. On May 15, 1998 the plaintiff received the following reply:
| [TRANSLATION] |
| I have carefully reviewed the facts pertaining to the filing of your grievance. The inmate Mayer cannot be regarded as meeting the eligibility criteria for private family visiting as defined in Commissioner"s Directive No. 770, paragraphs 22 et seq. |
| For these reasons, your grievance is dismissed. |
[4] Following this decision by the the Institution head, the plaintiff on May 22, 1998 filed a second level grievance with the Deputy Commissioner of the Quebec region; the following decision was delivered on June 13, 1998:
| [TRANSLATION] |
| In light of the information obtained, and as indicated to you at the preceding level, your application for private family visiting (PFV) with Philippe Mayer cannot be approved. Mr. Mayer does not meet the eligibility criteria for the PFV. In this regard we refer you to paragraphs 25, 27 and 28 of Commissioner"s Directive 770. Among other things, it indicates the eligibility criteria for visitors. |
| On the first criterion, we have no information to suggest that you cohabited with Mr. Mayer for a period of six months before your incarceration began. |
| On the second criterion, you mention in your grievance that you have been seeing Mr. Mayer for at least a year. However, paragraphs 27 and 28 of Commissioner"s Directive 770 clearly provide that the visitor must be a person from the community for this period of a year to be taken into account. That is not the case here. [Emphasis mine] |
[5] In response to this decision the plaintiff filed a third level grievance with the Assistant Commissioner, Organizational Development, of Correctional Service Canada on June 21, 1998. The latter gave the following decision on September 4, 1998:
| [TRANSLATION] |
| Your grievance regarding your application for private family visiting with a fellow inmate has been considered at the third level. |
| After a careful review of your grievance, we have concluded that your application does not in fact meet the eligibility criteria laid down in Commissioner"s Directive 770 for visiting. The person with whom you wish to share the PFV, the inmate Mayer, cannot be regarded as a visitor within the meaning of the Act . The CCRA defines the word "visitor" as "any person other than an inmate or a staff member". The fact that the relationship in question is a homosexual one is not in our view a valid argument. If your relationship had been formed when you were outside, you and your spouse would then have been eligible for the PFV under paragraph 25 of CD770 . We are thus upholding the decision of the Drummond authorities to reject your application in this connection. |
| We also note that paragraph 31of the said Directive authorizes an institution head, after studying each case, to authorize an inmate to use a private family visiting unit for quiet time when the unit is not being fully utilized. You will agree that the purpose of a "solitary visit" is generally to provide an inmate with the privacy that cannot be found in a general population. At such times the directors use their discretionary power to approve or disapprove such an application. |
| However, we consider that there is a problematic situation in the case of inmates of the same sex who are incarcerated in the same institution and who form a significant relationship during their incarceration. We are also of the opinion that a revision of Commissioner"s Directive 770 and/or the creation of guidelines should be considered by the head office, not only to avoid administrative decisions which may be made and appear arbitrary at the institutional level but also to lay down specific criteria regarding the eligibility of same-sex inmates who apply. |
| In the circumstances, we cannot at present approve your application. However, rest assured that this problem will be raised and reviewed accordingly. |
| Your grievance is therefore dismissed. [Emphasis mine] |
[6] Finally, the plaintiff filed an application for judicial review in this Court on September 25, 1998, asking the Court to quash the decision. He further asked this Court to order the Commissioner to reconsider the plaintiff"s third level grievance on the basis that the latter is entitled to access the private family visiting program.
POINT AT ISSUE
[7] Since what is at issue here is an application for judicial review, only one question really arises:
| Did the Assistant Commissioner commit an error of law in interpreting Commissioner"s Directive No. 770 as part of his decision made pursuant to the third level grievance filed by the plaintiff? |
APPLICABLE PROVISIONS
Act
[8] The Corrections and Conditional Release Act, S.C. 1992, c. 20 (hereinafter "the Act") provides a definition of "visitor" in s. 2:
| " visiteur " Toute personne autre qu"un détenu ou qu"un agent. [Mes soulignés] |
"visitor" means any person other than an inmate or a staff member. [Emphasis mine] |
[9] Section 70 of the Act provides that personal dignity shall be respected and s. 71 confers a right on inmates to have relationships with persons in the community:
| 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. 71. (1) Dans les limites raisonnables fixées par règlement pour assurer la sécurité de quiconque ou du pénitencier, le Service reconnaît à chaque détenu le droit, afin de favoriser ses rapports avec la collectivité, d'entretenir, dans la mesure du possible, des relations, notamment par des visites ou de la correspondance, avec sa famille, ses amis ou d'autres personnes de l'extérieur du pénitencier. (2) Dans chaque pénitencier, un avis donnant la liste des objets que les visiteurs peuvent garder avec eux au-delà du poste de vérification doit être placé bien en vue à ce poste.
(3) L'agent peut mettre fin à une visite ou la restreindre lorsque le visiteur est en possession, sans son autorisation ou celle d'un autre agent, d'un objet ne figurant pas dans la liste. [Mes soulignés]
|
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 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. (2) At each penitentiary, a conspicuous notice shall be posted at the visitor control point, listing the items that a visitor may have in possession beyond the visitor control point. (3) Where a visitor has in possession, beyond the visitor control point, an item not listed on the notice mentioned in subsection (2) without having previously obtained the permission of a staff member, a staff member may terminate or restrict the visit. [Emphasis mine] |
[10] Finally, ss. 3 and 4 of the Act define the general underlying principles:
| 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. 4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent_:
[Mes soulignés] |
| 3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
[Emphasis mine] |
Regulations
[11] The Corrections and Conditional Release Regulations, SOR/92-620 (hereinafter "the Regulations"), set out in ss. 90 to 92 the rules governing visits made to inmates:
| 90. (1) Tout détenu doit, dans des limites raisonnables, avoir la possibilité de recevoir des visiteurs dans un endroit exempt de séparation qui empêche les contacts physiques, à moins que:
(2) Afin d'assurer la sécurité du pénitencier ou de quiconque, le directeur du pénitencier ou l'agent désigné par lui peut autoriser une surveillance du secteur des visites, par un agent ou avec des moyens techniques, et cette surveillance doit se faire de la façon la moins gênante possible dans les circonstances. (3) Le Service doit veiller à ce que chaque détenu puisse s'entretenir avec son avocat dans un local assurant à l'entrevue un caractère confidentiel. 91. (1) Sous réserve de l'article 93, le directeur du pénitencier ou l'agent désigné par lui peut autoriser l'interdiction ou la suspension d'une visite au détenu lorsqu'il a des motifs raisonnables de croire :
(2) Lorsque l'interdiction ou la suspension a été autorisée en vertu du paragraphe (1) :
92. (1) Sous réserve de l'article 93, le directeur du pénitencier ou l'agent désigné par lui peut autoriser la suspension complète des droits de visite de tous les détenus du pénitencier lorsque la sécurité de celui-ci est sérieusement menacée et qu'il n'existe aucune autre solution moins restrictive. (2) La suspension des droits de visite visée au paragraphe (1) doit être revue :
[Mes soulignés] |
| 90. (1) Every inmate shall have a reasonable opportunity to meet with a visitor without a physical barrier to personal contact unless
(2) The institutional head or a staff member designated by the institutional head may, for the purpose of protecting the security of the penitentiary or the safety of any person, authorize the visual supervision of a visiting area by a staff member or a mechanical device, and the supervision shall be carried out in the least obtrusive manner necessary in the circumstances. (3) The Service shall ensure that every inmate can meet with the inmate's legal counsel in private interview facilities. 91. (1) Subject to section 93, the institutional head or a staff member designated by the institutional head may authorize the refusal or suspension of a visit to an inmate where the institutional head or staff member believes on reasonable grounds
(2) Where a refusal or suspension is authorized under subsection (1),
92. (1) Subject to section 93, the institutional head or a staff member designated by the institutional head may authorize a complete suspension of the visiting rights of all inmates in a penitentiary where the security of the penitentiary is significantly jeopardized and no less restrictive measure is available. (2) Every complete suspension of visiting rights under subsection (1), shall be reviewed by
[Emphasis mine] |
Directive
[12] The Directive states:
| ADMISSIBILITÉ DES VISITEURS 24. Le conjoint, le conjoint de fait, les enfants, le père et la mère, les parents nourriciers, les frères et soeurs, les grands-parents et les personnes avec lesquelles, selon le directeur, le détenu a un lien familial soutenu, sont admissibles à participer aux visites familiales privées.
25. On entend par conjoint de fait une personne qui, au moment où le détenu a été condamné, vivait avec lui depuis au moins six (6) mois, était considérée dans leur collectivité comme étant partenaire et manifestait l"intention de continuer à vivre en permanence avec lui, même s"ils n"étaient pas mariés. Il incombe au détenu ou au visiteur de prouver qu"ils vivaient en union de fait depuis au moins six mois avant l"incarcération. 27. Dans le cas de détenus admissibles pour lesquels il n"y a aucun visiteur satisfaisant aux critères décrits aux paragraphes 24 et 25, le directeur doit considérer d"autres personnes de la collectivité comme admissibles à prendre part aux visites familiales privées lorsqu"elles ont manifestement établi une relation importante avec le détenu pendant sa période d"incarcération courante. Cette décision doit s"appuyer sur une recommandation de l"agent responsable du cas, selon laquelle la relation est appropriée, stable et profitable aux deux parties. 28. L"agent responsable du cas doit tenir compte des renseignements contenus dans les enquêtes communautaires récentes, ou provenant d"autres sources, afin d"évaluer le bien-fondé, la stabilité et les bienfaits de la relation. Cela doit faire au moins un (1) an que la relation existe depuis que le détenu a commencé à purger sa peine, et il doit y avoir eu régulièrement des visites-contacts. 29. Le directeur peut refuser toute permission de visite familiale privée, même quant les conditions susmentionnées sont remplies, si les rapports établis par la gestion des cas montrent clairement que le visiteur ou le détenu devrait être considéré comme inadmissible en raison d"un danger éventuel pour le détenu ou le visiteur ou de toute autre circonstance exceptionnelle. 30. Quand une demande de participation à la visite familiale privée est refusée, le détenu et le visiteur doivent être rapidement informés par des motifs écrits de cette mesure et de la possibilité de présenter leurs observations à ce sujet. Le titre de la personne à qui adresser ces observations devrait être indiqué. Les informations fournies doivent respecter les restrictions imposées par la Loi sur la protection des renseignements personnels, notamment pour éviter que des renseignements personnels soient communiqués à l"une ou l"autre des parties. 31. Quand une unité de visites familiales privées n"est pas pleinement utilisée, le directeur peut, après une étude de chaque cas, autoriser un détenu à s"y retirer pour être tranquille. [mes soulignés] |
ELIGIBILITY-VISITORS 24. Persons eligible to participate in private family visiting shall include spouse, common-law partner, children, parents, foster parents, siblings, grandparents, and persons with whom, in the opinion of the institutional head, the inmate has a close familial bond. |
| 25. Common-law partner means a person who, at the time of the inmate"s conviction, lived with the inmate for at least six (6) months, was considered as the inmate"s partner in the community in which they lived, and who manifested an intention of continuing to live with the inmate permanently even though they were not married. The burden of proving that the above condition existed for six months prior to the inmate"s incarceration rests with the inmates and/or their visitors. 27. For eligible inmates for whom visitors do not meet the criteria outlined in paragraphs 24 and 25 above, the institutional head shall consider other persons from the community as eligible to participate in private family visiting where there is evidence that a significant relationship has developed during the inmate"s current period of incarceration. This consideration shall be based on the recommendation of the responsible case manager that the relationship is suitable, stable, and beneficial to both parties. 28. The responsible case manager shall consider information reported in a recent community assessment, or from other sources, in order to evaluate the suitability, stability and benefit of the relationship. The relationship should have existed for one (1) year during the inmate"s current period of incarceration and be characterized by regular on-going contact visits. 29. The institutional head may refine to permit a private family visit, even if the above conditions are fulfilled on the basis of case management reports which clearly indicate that a visitor or inmate should be considered ineligible to participate in private family visiting due to a potential for harm to the inmate or the visitor(s), or for any other exceptional circumstance. 30. When an inmate"s application for a private family visit is refused, the inmate and the visitor shall promptly be provided, in writing, with the reasons for the refusal or suspension and shall be given an opportunity to make representations with respect thereto. The title of the person to whom they should address their representations should be indicated. The extent of the information shared should take into consideration limitations of the Privacy Act, namely to avoid the disclosure of any personal information to either party. 31. When a private family visiting unit is not being fully utilized for private family visits, the institutional head may authorize its use for quiet time by an inmate on a case by case basis. [emphasis mine] |
PARTIES" ARGUMENTS
Plaintiff
[13] The plaintiff maintained, referring to para. 27 of the Directive, that he is entitled to access to the private family visiting program in order to maintain an intimate and significant relationship with a loved one, since that right has not been withdrawn by the Act and is in fact recognized by the Directive.
[14] Further, the plaintiff noted that under paragraph 31 of the Directive a penitentiary head has the discretion to allow an inmate to use one of the units made available for the private family visiting program for quiet time in circumstances where such a unit is available. In addition to that possibility, the plaintiff noted that a practice exists in penitentiaries, not covered by a Commissioner"s Directive, to allow certain inmates to receive visits from their spouses of the opposite sex who are incarcerated in another penitentiary.
[15] Finally, the plaintiff maintained that the director"s refusal to give access to the private family visiting program in order to have a significant relationship in his life infringed his personal dignity and hence contravened s. 70 of the Act. Moreover, the plaintiff also argued that this refusal constituted discrimination because of sexual orientation and so contravened s. 15 of the Canadian Charter of Rights and Freedoms (hereinafter "the Charter").
Defendant
[16] The defendant submitted that in view of the definition of "visitor" contained in s. 2 of the Act and s. 71 of the Act, it is clear that the latter"s purpose is to encourage inmates to have relations with members of their family and the community: this accordingly excludes inmates incarcerated in same penitentiary as themselves.
[17] As to the allegations of sexual discrimination, the defendant submitted that the latter are without basis since the reason for the rejection was the fact that Mr. Mayer could not be regarded as a visitor (and hence as a person from outside within the meaning of the Act and the Directive). Further, Mr. Mayer also could not be regarded as a common-law partner within the meaning of paragraph 24 of the Directive, since he did not meet the requirements of the definition of a common-law partner contained in paragraph 25.
[18] Additionally, in view of the definition of a common-law partner the defendant maintained, in response to an argument put forward by the plaintiff, that it is entirely reasonable to conclude that a penitentiary head is authorized to allow private family visiting between couples meeting the definition of a partner or common-law partner, who are each serving a sentence in two different penitentiaries.
[19] On the constitutional question raised by the plaintiff, the defendant submitted that an impairment of human dignity must be assessed in accordance with the criteria of s. 12 of the Charter, that is the criteria for determining whether there has been cruel or unusual punishment. In this case, it seemed clear that there was no cruel or unusual punishment.
ANALYSIS
Applicable standard of review
[20] I quite recently devoted some effort to defining the applicable standard of review in connection with the judicial review of a decision by the federal Commissioner of the Correctional Service in Tehrankari v. Canada (Correctional Service of Canada), Case No. T-1662-98, delivered on April 13, 2000, in accordance with the Act and the grievance settlement procedure contained in its s. 90.
[21] After applying the four factors mentioned by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, for determining the proper standard of review, (1) the presence or absence of a privative clause, (2) the expertise of the decision-maker, (3) the purpose of the specific provision and of the Act as a whole, and finally, (4) the nature of the problem in question, especially whether it relates to the determination of law or facts, I came to the conclusion that in the case where a simple question of interpretation of a rule of law had been raised before me, it was the correctness standard which should be applied. However, in a case involving a decision embracing both interpretation of a rule of law and the application of facts in the circumstances, the appropriate standard of review should be that of reasonableness simpliciter. Finally, in a case involving pure findings of fact in the circumstances, the standard of review should be that of the patently unreasonable decision.
[22] In the case at bar, the Court has before it an application for judicial review based on an error of interpretation of the applicable rules of law: accordingly, it is the standard of the correct decision which must be applied.
Statutory interpretation rules
[23] The Supreme Court of Canada, per Iacobucci J., recently summarized the rules of statutory interpretation in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at 40-41:
| Although much has been written about the interpretation of legislation (see, e.g. Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: |
| Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. |
. . . . .
| I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". |
Application of rules of interpretation to case at bar
[24] Analysis of the earlier decisions of this Court indicates that it has ruled several times on the judicial review of decisions which applied the Directive in question. Nevertheless, the exact scope of the latter has never been clearly defined.
[25] I do not intend in the instant judicial review to undertake an exhaustive analysis of the exact extent of the rights relating to the private family visiting program as established by the Directive. This analysis will be limited to determining whether an inmate from the same penitentiary as the one making an application for access to the private family visiting program may be considered a visitor within the meaning of that Directive.
Visiting right
[26] To begin with, all the above-cited legislative and regulatory provisions refer to the same idea, that of the visiting right. Although the meaning of the word "visiting" has not been given, Parliament in s. 2 has defined the meaning of the word "visitor" as excluding other inmates and staff members. Since this definition is included in the Act it follows, by legislative hierarchy, that the same definition applies to regulations adopted under the power
conferred through s. 96 of the Act as well as to administrative directives adopted for the internal administration of penitentiaries.
[27] It thus inevitably follows that Mr. Mayer cannot be considered a visitor within the meaning of the Act, in view of his situation as an inmate. For reasons of internal consistency, Mr. Mayer also cannot be considered a visitor within the meaning of the Directive.
[28] That being the case, and although essentially this conclusion would in itself be a sufficient basis for dismissing the application for judicial review, since the Directive as a whole is concerned with visits, I will nevertheless examine each of the relevant paragraphs.
Definition of common-law partner in the Directive
[29] So far as the possibility of regarding Mr. Mayer as the plaintiff"s common-law partner is concerned, it is clear that in view of the definition of this word contained in paragraph 24 of the Directive Mr. Mayer cannot be so regarded: the evidence clearly showed that he was not living with the plaintiff at least six months before the latter"s incarceration, as their relationship was formed inside the penitentiary itself.
Application of exception contained in paragraph 27 of Directive
[30] As indicated above, paragraph 27 of the Directive applies in all other cases in which a person from the community, invited to participate in the private family visiting program, does not meet the criteria set out in paragraph 24 and 25, if he or she may not be regarded as a spouse, a common-law partner, a child, a father, a mother, foster parents, a brother, a sister, a grandparent or a person with whom there is a close familial bond.
[31] In addition to the fact that Mr. Mayer cannot be regarded as a common-law partner within the meaning of paragraph 25, I also conclude that he must be excluded from the meaning given to the phrase "person with whom [there is] a close familial bond", since he has
no family ties to the plaintiff.
[32] After carefully reading paragraph 27 of the Directive, it can be seen that it states that the institutional head may regard as eligible for the private family visiting program "other persons from the community . . . where there is evidence that a significant relationship has developed during the inmate"s current period of incarceration". Thus, the words collectivité in French and in community are defined as follows:
[TRANSLATION]
| " Group of individuals brought together naturally or to attain a common purpose. (Le Petit Robert ) |
| " Group of individuals, generally quite large, pursuing a common interest: subordinating one"s interests to those of the community. // Public communities, generic name covering state, local communities, public institutions. (Le Larousse en Couleur) |
| " 1. Group of persons related by common organization, common interets . . . b. Part of state"s territory enjoying measure of autonomy (federal state) (Le Petit Larousse Illustré )* |
. . . . .
| " A body of individuals; an organized political, municipal, or social body; a body of people living in the same locality; a body of people having religion, profession, etc., in common; a body of nations unified by common interests . . . (The New Shorter Oxford English Dictionary ) |
| " 1) a group of people living together in one place, especially one practising common ownership. 2) a group of people having a religion, race, profession, or other particular characteristic in common. 3) the condition of sharing or having certain attitudes and interests in common . . . (The New Oxford Dictionary of English ) |
[33] Accordingly, bearing in mind the ordinary meaning of this word, the object, background and scheme of the legislative and regulatory provisions, I have to conclude that the word "community" must be interpreted as referring to all persons outside penitentiaries, necessarily excluding inmates who, for reasons of security and the protection of society, are as prescribed by s. 4 of the Act limited in the rights and privileges of all members of society.
[34] Further, in Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, the Supreme Court of Canada discussed the particular circumstances of the prison environment and, of course, the intrinsic limitations on the rights and freedoms generally accorded the individual, at 877:
| Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. |
[35] It thus appears that Mr. Mayer cannot be seen as a person from the community, since the definition of this word excludes inmates.
[36] It was argued at the hearing that under paragraph 27 a penitentiary head has already assumed the power to grant the right to private family visiting to an inmate whose common-law partner was himself or herself an inmate in another penitentiary.
[37] It is not within the Court"s jurisdiction to consider factual situations preceding or external to the case before it. Based on the actual wording of paragraph 27, I conclude that although this paragraph gives an institutional head a discretionary power, the latter is required nevertheless to observe the terms and limits of that power.
[38] In the case at bar, I must conclude that the institutional head properly denied the plaintiff access to the private family program. Despite the fact that paragraph 27 of the Directive allows a visit by a person who has developed a significant relationship with the inmate during the latter"s current period of incarceration, the visitor in question must still correspond either to the definition of a "visitor" within the meaning of the Act, to that of a "common-law partner" within the meaning of the Directive or to that of a "person from the community" within the meaning of the Directive. On the facts of the case at bar, Mr. Mayer does not meet any of these definitions.
[39] Additionally, I take this opportunity to note that it is the meaning of the word "visitor" as defined by the Act that must be considered first in determining the persons from the community who are eligible for the private family visiting program, not the meaning of the word "common-law partner", which falls last in the legislative hierachy.
Application of exception contained in paragraph 31 of Directive
[40] In this Court the plaintiff argued that the institutional head could, by exercising the
discretionary power conferred on him by paragraph 31 of the Directive, give him access to a private family visiting unit when one of the latter is not fully utilized, so he could pursue his emotional relationship with Mr. Mayer.
[41] Once again, I must say that this discretionary power of the head has to be exercised within the limits laid down in the provision conferring the said power. The wording of paragraph 31 itself indicates that its purpose is to enable an inmate to have access to one of the said units so that he may use it by himself. In the circumstances, it is clear that the head then must exercise his discretion only in cases where an inmate asks for access to one of these units so he can be there by himself. In all other cases of applications for access, it is the other provisions which will apply. Accordingly, paragraph 31 provides no basis for the application for access made by the plaintiff.
Constitutional question raised
[42] A constitutional question was raised by the plaintiff, that of whether the Assistant Commissioner"s decision which is the subject of the instant judicial review constituted discrimination within the meaning of s. 15 of the Charter.
[43] In Veysey v. Canada (Correctional Service) (1998), 109 N.R. 300, the Federal Court of Appeal clearly indicated that in cases of private family visiting the definition of common-law partner necessarily included common-law partners of the same sex. As this question has already been decided, I see absolutely no need to return to it.
[44] In actual fact, it appears that the decision to deny the plaintiff access to the private family visiting program involves no discrimination based on sex: as I indicated above, Mr. Mayer could not in any way correspond to any of the definitions of eligible persons and so could not be eligible for coverage by this Directive.
[45] I note that the Assistant Commissioner mentioned in his decision the fact that theDirective includes a certain "problematic situation" in the case of inmates of same sex who have developed a significant relationship during their incarceration. However, as the Supreme Court of Canada has reiterated many times, it is not for a court of law to re-write legislative and regulatory provisions adopted by Parliament or a provincial legislature. Accordingly, it is not within my jurisdiction to consider such a question.
CONCLUSION
[46] In the circumstances, therefore, I must dismiss the instant application for judicial review.
| François Lemieux Judge |
Ottawa, Ontario
April 27, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-1859-98 |
| STYLE OF CAUSE: Gilles Laliberté v. Commissioner of Correctional Service Canada and Attorney General of Canada |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: September 28, 1999 |
| REASONS FOR ORDER BY: Lemieux J. |
| DATED: April 27, 2000 |
APPEARANCES:
| Claudia Côté FOR THE PLAINTIFF |
| Éric Lafrenière FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Généreux, Côté FOR THE PLAINTIFF |
Drummondville, Quebec
| Department of Justice FOR THE DEFENDANT |
Montréal, Quebec
__________________* Translation of quotation ends here " TR.