Date: 20030516
Docket: T-1705-01 and T-2095-01
Citation: 2003 FCT 620
BETWEEN:
ALLAN ARTHUR CRAWSHAW
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] Allan Arthur Crawshaw (the "Applicant") is serving a life sentence for first degree murder. Following his conviction on May 17, 1993, he was incarcerated at the Mission Medium Security Institution. In December of 2000, he was transferred to the Elbow Lake Minimum Security Institution and, shortly thereafter in early 2001, he was moved to the Ferndale Minimum Security Institution where he remains today.
Introduction
[2] The two applications at issue are for judicial review of decisions made by Correctional Services Canada ("CSC") in response to two third level grievances filed by the Applicant. Application for judicial review number T-1705-01 (Vancouver Registry) concerns CSC's refusal to allow the Applicant to purchase a computer with a video card with television tuner capability (the "TV Card") and the second application for judicial review, number T-2095-01 (Vancouver Registry) arises from CSC's refusal to provide the Applicant with a CD-ROM which arrived as an enclosure attached to page 57 of his Maclean's magazine dated May 14, 2001 (the "CD-ROM").
The Legal Context
(i) CD-ROMs and TV Cards
[3] The Corrections and Conditional Release Act, S.C. 1992, c.20 (the "Act") provides in subsection 96(p) that the Governor-in-Council may make regulations "prescribing limits on the entry into a penitentiary and the use by inmates of publications, video and audio materials, films and computer programs".
[4] The Corrections and Conditional Release Regulations, SOR/92-620 (the "Regulations") made under the Act include the following provision as 96(1):
| 96. (1) The institutional head or a staff member designated by the institutional head may prohibit the entry into the penitentiary or the circulation within the penitentiary of any publication, video or audio material, film or computer program that the institutional head or staff member believes on reasonable grounds would jeopardize the security of the penitentiary or the safety of any person. [emphasis added] |
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96. (1) Le directeur du pénitencier ou l'agent désigné par lui peut interdire l'introduction dans le pénitencier, ou la circulation à l'intérieur du pénitencier, de publications, d'enregistrements vidéo et audio, de films ou de programmes informatiques lorsqu'il a des motifs raisonnables de croire que ceux-ci compromettraient la sécurité du pénitencier ou de quiconque. [je souligne] |
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[5] Subsection 97(c) of the Act provides that the Commissioner may make rules for carrying out the Regulations and subsection 98(1) of the Regulations says that such rules may be called Commissioner's Directives.
[6] Of relevance to these applications for judicial review is Commissioner's Directive 090 which states, in part, that:
| Personal computers' computer peripherals and software shall be permitted as long as they do not allow for communications or access to computer networks. Inmates will be required to sign a statement (CSC form 2022) whereby they consent to abide by the conditions governing inmate-owned computers. The Director General Security, shall be responsible for publishing technical specification for inmate-owned computers and peripherals. These specifications shall be made readily accessible to staff and inmates. |
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Les ordinateurs personnels, les périphériques et les logiciels seront autorisés, à la condition qu'ils ne permettent pas d'établir des liaisons de télécommunications ou d'accéder à des réseaux informatiques. Les détenus doivent signer une déclaration (formulaire SCC 2022) dans laquelle ils s'engagent à respecter les conditions régissant les ordinateurs appartenant aux détenus. Il incombe au directeur général, Sécurité, de publier les caractéristiques techniques que peuvent posséder les ordinateurs et périphériques des détenus. Le personnel et les détenus doivent avoir facilement accès à cette description des caractéristiques techniques autorisées. |
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[7] The technical specification for inmate-owned computers which is relevant in this case, is a Correctional Service Canada document issued by the A/Director General, Security and entitled "Technical Requirements" and dated September 10, 1999. It provides under the heading "Schedule of Allowable Computer Configurations and Related Peripherals" that an inmate may purchase one IBMÔ or IBMÔ compatible desktop computer which does not exceed the following standards". The standards include:
| · CD ROM disks obtained only from approved vendors ("homemade" CDs and CDs offered as promotional items via magazines are not acceptable)
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· Disques compacts obtenus d'un vendeur approuvé seulement (les disques compacts « artisanaux » et ceux offerts comme articles de promotion dans des magazines ne sont pas acceptés) |
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| · Video card (capable of displaying a computer signal only) |
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· Une carte vidéo (affichant uniquement des signaux d'ordinateur) |
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[8] The Technical Requirements state in their preamble that:
| The following standards are based on CSC's ability to reasonably assess and regulate various risks associated with inmate owned computers in a correctional setting. The specifications set out in this document are subject to review at six months invervals.
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Les normes suivantes s'appuient sur la capacité du SCC d'évaluer de manière raisonnable les divers risques associés à la présence, dans les établissements correctionnels, d'ordinateurs appartenant aux détenus et sur son pouvoir d'émettre des régles concernant ces risques. Les spécifications contenues dans ce document doivent être revues au moins tous les six mois, à compter de leur date de publication. |
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(ii) The Grievance Process
[9] Section 90 of the Act provides that a procedure shall be established for expeditiously resolving offenders' grievances and subsection 96(u) of the Act states that the Governor-in-Council may make regulations which prescribe an offender grievance procedure.
| 90. There shall be a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).
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90. Est établie, conformément aux règlements d'application de l'alinéa 96u), une procédure de règlement juste et expéditif des griefs des délinquants sur des questions relevant du commissaire.
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| 96.(u) prescribing an offender grievance procedure; |
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96.u) fixant la procédure de règlement des griefs des délinquants; |
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The process has four stages which are described in Commissioner's Directive 081.
[10] A grievance is initially expressed as a complaint and it elicits a response. If an offender is not satisfied with the response a first level grievance is filed. It is considered at the institutional level. If the offender continues to be dissatisfied with the response he or she may file a second level grievance which is considered at the regional level and then a third level grievance which is addressed at the national level. As the next step, applications for judicial review of decisions on third level grievances may be made to the Trial Division of the Federal Court.
The Decisions
i) The TV Card
[11] On September 6, 2001, the respondent decided the Applicant's third level grievance number V8000A004930 by concluding that he could not purchase a TV Card for his computer because such cards were prohibited by the Technical Requirements.
[12] Although only the third level decision is the subject of this application, it cannot be understood without reading the earlier decisions. They provided as follows:
After the Initial Complaint:
1. I have reviewed your inmate complaint form dated the 3rd of December 2000.
2. In your complaint you have requested two actions. They are: a) That I be allowed to purchase a computer with a TV card like other inmates in the federal prison system and b) That the Commissioner and every CSC employee under her control stop violating the laws of Canada passed by the Parliament of Canada - with regards to purchasing a computer with a TV on it.
3. There are a few inmates who may have TV cards in their computers. However, the reason they may have them is due to the fact that they were grandfathered prior to September 10th, 1999. All computers purchased by inmates after the September 10th, 1999 date were not permitted to have TV cards as per the technical requirements for computers purchased by inmates.
4. The Canadian Charter of Rights and Freedoms states under section 1, "The Canadian Charter of Rights and freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The law in this case is the CCRA.
5. The CCRA under Regulations, section 96; The Governor in Council may make regulations: (b) for authorizing staff members or classes of staff members to exercise powers, perform duties or carry out function that this Part assigns to the Commissioner of the institutional head; (p) prescribing limits on the entry into a penitentiary, and the use by inmates, of publications, video and audio materials, films and computer programs Under Rules, section 97; Subject to this Part and the regulations, the Commissioner may make rules; (a) for the management of the Services: (c) generally for carrying out the purposes and provisions of this Part and the regulations. Furthermore, in the CCRA under Commissioner's Directives, section 98 (1) the Commissioner may designate as Commissioner's Directives any or all rules made under section 97.
6. Therefore, the Commissioner and every CSC employee under her are following the law as laid out under the CCRF and the CCRA.
7. Based on the above information, your complaint is denied.
After the First Level Grievance:
I have reviewed your grievance reference number V8000A004930 in conjunction with Commissioner's Directive 090. After reviewing the current policy it is clear that I do not have the authority to grant your request. You are currently incarcerated at Ferndale Institution. I would encourage you to discuss the matter with the Warden of Ferndale Institution.
After the Second Level Grievance:
Your second level grievance regarding the denial of your right to buy a computer with a TV card on it has been reviewed.
Due to a National decision within the last few years, TV cards such as what you wanted for your computer are no longer permitted for offenders. This decision resulted from a number of documented incidents involving inappropriate use of such cards. As well, there were also concerns of liability for copyright infringement in capturing and sharing images from commercial sources.
When the decision was made to deny such items, it was determined that those inmates who had computers which met previous standards may continue to keep these computers in their cells.
As the decision to deny you a TV card is in accordance with National Standards, your grievance is denied.
After the Third Level Grievance:
Your third level grievance in which you have demanded that you be permitted to purchase a television card for your computer has been reviewed.
I have also reviewed the responses provided to your submissions at the lower levels. I find the answers provided to you to be complete, informative and appropriate. As well, I concur with the decisions rendered.
There is no additional information to share with you regarding this issue. Your grievance remains denied.
ii) The CD-ROM
[13] On October 21, 2001, the respondent decided the Applicant's third level grievance number V80A0000656 by concluding that, based on the Technical Requirements, he was not entitled to the CD-ROM in his Maclean's magazine. Again, because the third level decision referred to earlier decisions, it is instructive to review them.
[14] After his initial complaint, the Applicant was advised on May 14, 2001 that:
Item placed in storage for issue upon release. Taken under Technical Requirements for Inmate Computer. Policy Issued under the Authority of the A/Director General, Security Divsion September 10, 1999
[15] The Applicant's first level grievance appears to have resulted in the following response:
SUGGESTED RESPONSE
The A & D Officer followed proper policy guidelines. The authority for denying you access to the CD disk is under paragraph 13 of Commissioner's Directive 090 - Personal Property of Inmates. It makes reference to an inmate's signed agreement (Form CSC 2022) to abide by the conditions governing inmate owned computers and that the Director General Security is responsible for publishing the specification standards.
The "Technical Requirements for Inmate Computers" standard dated September 10, 1999 is still in effect. CD's offered as promotional items via a magazine is not acceptable.
As a result, your CD disk has been placed in your stored effects.
As proper procedures were followed, your grievance is denied.
[16] After his second level grievance, the Applicant was advised as follows:
Suggested Response - CRAWSHAW, Allan FPS 074727C File V8000A000656 Ferndale Institution
Your second level grievance the denial of your request to have a CD ROM which you received in a Maclean's magazine has been reviewed.
In your grievance, you state that policy does not have the force of law, therefore you should be able to retain and use this educational CD ROM. Section 84 of the Corrections and Conditional Release Regulations provides direction for restrictions on computers. This Regulation permits the Commissioner to set out policy for the control of inmate effects. The policy is outlined in Commissioner's Directives 090. Pursuant to Commissioner's Directives 090, the Technical Requirements for Inmate Computers document provides restrictions specific to computer software.
Offenders must demonstrate legal ownership for software. CD ROMs accompanying magazine subscriptions normally includes shareware programs for which the individual purchasing the magazine is permitted to try a time limited copy of a program. Ownership of the program is retained by the original authors until such time as a registered copy is purchased. According to CSC regulations, only registered copies are permitted as cell effects.
CD ROMs which accompany magazine subscriptions will vary with each issue of the magazine and may contain software and utilities which are not permitted in a correctional environment. You should be aware that these CD ROMs have been known to contain computer viruses which present a risk to computers on which they are run. It is not administratively feasible to conduct detailed evaluation and review of each magazine CD ROM received to determine whether the specific issue is virus free and legally owned by the individual offender as well as free of prohibited categories of software. CD ROMs can contain up to 700 megabytes of information and programs.
It is recognized that education can be an important part of the reintegration process. When an offender is involved in an educational program as part of his Correctional Plan, there is provision for supervised access to programs and media under the auspices of educational staff.
As CSC policy does not permit offenders to received CD ROM discs through magazine subscriptions, your grievance is denied.
[17] Finally, his third level response resulted in the following decision:
Your third level grievance concerning the return of a CD-Rom that had been enclosed in a magazine has been reviewed.
Regarding your allegation that timeframes for responding to routine grievances were not respected by the second level, you should be aware that your submission was not received until 2001-06-13. A response would therefore not have been due until 2001-07-19 and was, in fact, provided on 2001-07-17.
I have also reviewed the responses you have been provided by the previous levels. You have been provided complete and appropriate responses to your issue and I agree with the decisions reached on this subject. In fact, there is no additional information to provide you in regard to this subject.
No further action will be taken.
The Issue
[18] The question to be decided on this application for judicial review is whether the respondent's third level decisions concerning the TV Card and the CD-ROM should be set aside because the decision makers committed reviewable errors.
Discussion
[19] The Applicant submits that the Technical Requirements which preclude promotional CD-ROMs and TV Cards are not justified by subsection 96(1) by the Act because no reasonable and probable grounds exist to support the conclusion that the TV Card and the CD-ROM would jeopardize the security of the penitentiary or the safety of any person. However, on this application for judicial review, the court has no evidence before it which would allow it to evaluate the Technical Specifications to determine whether they are justified by subsection 96(1) of the Act.
Conclusions
[20] I have not identified a reviewable error in this Decision. It is clear that it was appropriately based on the Technical Requirements.
[21] Since the Applicant has failed on the merits and since there are no special circumstances there will be no order of costs in the Applicant's favour.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
May 16, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1705-01 and T-2095-01
STYLE OF CAUSE: Allan Arthur Crawshaw v. AGC
PLACE OF HEARING: Vancouver, B.C. (In Writing)
DATE OF HEARING: April 9, 2003 (In Writing)
REASONS FOR : Simpson, J
APPEARANCES:
Allan Arthur Crawshaw FOR APPLICANT
Ken Manning FOR RESPONDENT
SOLICITORS OF RECORD:
Allan Arthur Crawshaw
On his own behalf
c/o Ferndale Minimum Security Institution
33737 Dewdney Trunk Road
P.O. Box 50
Mission, BC
V2V 6B2
FOR APPLICANT
Morris Rosenberg
Department of Justice
Vancouver Regional Office
FOR RESPONDENT