Date: 20001106
Docket: T-1776-00
BETWEEN:
LORNE MCCONNELL and KEVIN WHYNDER
for themselves and as Representatives of the
General Population Inmates of Kent Institution
and their visitors
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.
[1] This is a motion for an Order for an interim injunction until the trial of this matter to restrain the respondent from integrating visits without regard for whether the inmate is in Protective Custody or from the General Population.
[2] It is also a motion for an Order of Prohibition to prevent the reduction of the times and dates available for General Population visits without the presence of Protective Custody inmates and their visitors, or alternatively an Order of Prohibition prohibiting the respondent from permitting Protective Custody inmates and their visitors from being present when General Population inmates are with their visitors.
LEGISLATION APPLICABLE
[3] The legislation governing the Correctional Service of Canada includes the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA") and the regulations made pursuant to section 96 of that act (the "Regulations").
[4] Section 3 of the CCRA sets forth the purpose of the federal correctional system:
Purpose
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.
Objet
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 5 and 6 of the CCRA state as follows:
Correctional Service of Canada
5. There shall continue to be a correctional service in and for Canada, to be known as the Correctional Service of Canada, which shall be responsible for
(a) the care and custody of inmates;
(b) the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community;
(c) the preparation of inmates for release;
(d) parole, statutory release supervision and long-term supervision of offenders; and
(e) maintaining a program of public education about the operations of the Service.
1992, c. 20, s. 5; 1997, c. 17, s. 13.
Service correctionnel du Canada
5. Est maintenu le Service correctionnel du Canada, auquel incombent les tâches
suivantes :
a) la prise en charge et la garde des détenus;
b) la mise sur pied de programmes contribuant à la réadaptation des délinquants et à leur réinsertion sociale;
c) la préparation des détenus à leur libération;
d) la supervision à l'égard des mises en liberté conditionnelle ou d'office et la surveillance de longue durée de délinquants;
e) la mise en oeuvre d'un programme d'éducation publique sur ses activités.
1992, ch. 20, art. 5; 1997, ch. 17, art. 13.
6. (1) The Governor in Council may appoint a person to be known as the Commissioner of Corrections who, under the direction of the Minister, has the control and management of the Service and all matters connected with the Service.
(2) The national headquarters of the Service and the offices of the Commissioner shall be in the National Capital Region described in the schedule to the National Capital Act.
(3) The Commissioner may establish regional headquarters of the Service.
6. (1) Le gouverneur en conseil nomme le commissaire; celui-ci a, sous la direction du ministre, toute autorité sur le Service et tout ce qui s'y rattache.
(2) L'administration centrale du Service et les bureaux du commissaire sont situés dans la région de la capitale nationale au sens de l'annexe de la Loi sur la capitale nationale.
(3) Le commissaire peut constituer des administrations régionales du Service.
[5] To succeed in this case the applicant has to demonstrate that there is a serious issue to be tried, that the applicants will suffer any irreparable harm without an interlocutory injunction and that the balance of convenience favours the applicant.
SERIOUS ISSUE
[6] To determine whether there is a serious issue to be tried, I have to refer to the application for judicial review. I should wonder whether the decision of the Commissioner of Corrections in upholding the warden's decision was patently unreasonable.
[7] The respondent submits that the warden's decision to integrate visits is purely administrative in nature, does not fundamentally effect any of the applicant's rights and does not constitute a serious issue for trial.
[8] Without deciding it but taking for granted that there is a serious issue I will go directly to the next step of the test.
IRREPARABLE HARM
[9] The applicants suggest that the respondent's decision would place two antagonistic groups of untreated violent inmates in a confined area with visitors and staff. The applicant suggests that there is potential for violence in that decision and that constitutes irreparable harm. Referring to RJR-Macdonald 1 the applicant suggest that it is difficult to quantify what constitutes irreparable harm in an application which evokes section 12 of the Charter of Rights and Freedom.
[10] I have carefully reviewed the affidavits submitted by both parties.
[11] In my opinion, the applicants' evidence on this issue is speculation and opinion and fails to demonstrate that there is a real probable risk of harm.
[12] The respondent convinced me that the warden has considered all the concerns presented by the applicants and has determined that any risk associated with integrated visits is manageable within the institution.
[13] In the case at bar, the applicants have to demonstrate a real probability of harm. Molloy, J. in Chen v. Canada Trustco Mortgage Co. (1997), 13 C.P.C. (4th) 186 at p. 188:
| The onus is on the person seeking the injunction to establish irreparable harm. This must be based on evidence before the court. As stated by Epstein J. in 754233 Ontario v. R.-M. Trust Co. (January 20, 1997) Doc. 96-Cu-114787, Re 7166196 (Ont. Gen. Div.), "Irreparable harm cannot be founded upon mere speculation". |
The applicants in the present case have not been able to establish that they would suffer irreparable harm if an injunction was not granted.
BALANCE OF CONVENIENCE
[14] Referring to the balance of convenience I have to note that I see nothing in this case which indicated that the warden's discretion was exercised improperly. I also note that the decision in question has been reviewed and upheld by both the Deputy Commissioner of Corrections for the Pacific Region and the Commission of Corrections.
[15] This Court cannot usurp the functions of a public official exercising his discretion lawfully under statutory authority which is the case here.
[16] In my view, the balance of convenience favours the refusal of this injunction. The harm to the public interest by preventing the warden of Kent Institution from integrating visits and endeavouring to fulfil a primary purpose of the legislation outweighs any potential harm that the applicants may suffer.
[17] For those reasons this motion is dismissed.
(Sgd.) "Pierre Blais"
Judge
November 6, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-1776-00 |
| STYLE OF CAUSE: Lorne McConnell et al |
v.
Attorney General of Canada
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: October 30, 2000 |
REASONS FOR ORDER AND ORDER OF BLAIS, J.
| DATED: November 6, 2000 |
APPEARANCES:
| Mr. Anthony Zipp For the Applicants |
| Mr. Curtis Workun For the Respondent |
SOLICITORS OF RECORD:
Zipp & Company
Barristers and Solicitors
| Coquitlam, BC For the Applicants |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
1 RJR-Macdonald Inc. v. Canada (Attorney General) (1994) 111 D.L.R. (4th) 385 (referred to as "RJR").