Docket: T-554-02
Neutral Citation: 2003 FCT 288
BETWEEN:
INMATE WELFARE COMMITTEE
OF WILLIAM HEAD INSTITUTION
Applicant
AND:
MICHAEL GALLAGHER DIRECTOR
WILLIAM HEAD INSTITUTION;
CORRECTIONAL SERVICE CANADA (PACIFIC);
CORRECTIONAL SERVICE OF CANADA (NATIONAL)
Respondents
ROULEAU, J.
[1] This is an application for an order setting aside the decision of the Correctional Service of Canada (CSC) dated February 6, 2002, denying the applicant's third-level grievance against the non-smoking restriction in all buildings, including inmate living accommodations, at William Head Institution (WHI).
[2] The facts leading up to this application may be summarized as follows. On January 1, 1989, Treasury Board introduced a policy that prohibited smoking in all public service work places. Subsequently, the Non-smokers Health Act and Regulations were introduced. The legislation provided that all federally regulated work places, such as those of the Correctional Service of Canada, were required to be smoke free. In 1990, Correctional Services made a submission to Treasury Board requesting that certain area within federal institutions be exempted from the policy. The submission was approved and Correctional Service staff and offenders were permitted to smoke in designated smoking areas, such as living areas and visiting rooms.
[3] However, between 1995 and 2000 this exemption was reviewed by Correctional Service on a number of occasions. In April of 1997, the Correctional Service of Canada National Implementation Committee on Smoking issued a communique setting out the changes to be made to CSC's smoking policy. The communique stated as follows:
Inmates and staff will be permitted to smoke in those cellblocks/ranges, or portions thereof, that local management, in consultation with union and inmate representatives, designates as being a smoking room or smoking are.
Each Warden is to meet with union and inmate representatives to decide which areas of cellblocks/ranges are to be designated smoking and non-smoking given their architectural reality. . .
Appropriate and consistent procedures need to be developed at the institutional level to protect the rights of non-smokers and to minimize the effects of tobacco smoke on staff who must work in those locations. It should be noted that paragraph 3(3) of the Non-smokers'Health Act permits the employer to require employees, by reason of the nature of their duties, to perform those duties in a designated smoking room or area. In particular, procedures must be established to protect non-smokers with pre-existing medical conditions (such as angina, acute respiratory diseases, chronic obstructive lung diseases, asthma, hay fever and other allergies) from prolonged exposure to second hand tobacco smoke.
[4] Early in 2001, Warden Michael Gallagher of the William Head Institution determined that action was required to deal with the issue of second-hand smoke in the living accommodations. In arriving at this decision, the administration took into consideration staff concerns with the dense smoke that accumulated in the living and dining rooms and the stairwells leading to the second floor. Three staff members who had allergies to smoke were provided with masks prescribed by their doctors and masks were also offered to other staff members who had concerns.
[5] In February and April of 2001, the Inmate Welfare Committee was consulted regarding the expanded restriction of smoking within the institution. On May 3, 2001, the Inmate Committee and other concerned individuals provided a written response outlining their opposition to the proposal and requested further consultation. Thereafter, a change to the representatives of the Inmate Committee ensued. Warden Gallagher forwarded a memorandum to the new Inmate Committee in August of 2001 reiterating his intention of expanding the smoking policy to include the entirety of the living areas at the institution and relegating it to an outdoor only activity. A meeting was scheduled for Friday, August 24, 2001, to discuss the proposal.
[6] On August 25, 2001, the Inmate Welfare Committee sent a letter to the administration of WHI indicating that it had consulted with both smoking and non-smoking inmates and stating that "the inmate population of [WHI] is vehemently opposed to this pilot project representing the creation of a precedent that can affect every federal prison in Canada".
[7] Warden Gallagher issued a memo to the Inmate Committee on September 7, 2001, advising that as of October 1, 2001, all buildings including inmate living accommodations would be designated non-smoking. During a meeting on September 12, 2001, the Committee was asked for suggestions regarding the implementation of the smoking policy but indicated that its members were not prepared to discuss the issue further at that time on the advice of legal counsel.
[8] On July 21, 2001, Inmate Philip Wilkin filed a grievance on behalf of the Inmate Welfare Committee opposing the smoking ban. After that was considered, he filed a second level grievance on July 30, 2001. The final third level grievance was filed on September 1, 2001. After reviewing the submission of inmate counsel Michael Jackson, the material submitted by the Inmate Committee in their first, second and third level grievances, and all of the material submitted in the respondent's affidavit material, the Commissioner of Correctional Service of Canada rendered a decision dated February 6, 2002, denying the grievance. The decision states in part as follows:
As per your request, the following is provided in response to the individual questions as presented in your submission.
1. Warden Gallagher has the delegated authority to implement a pilot project of this nature and extent at the local level under section 4 of the Corrections and Conditional Release Regulations and section 13(d) of Commissioner's Directive 200, Corporate Policy Framework. It is very clear that WHI adhered to the provisions of section 74 of the Corrections and Conditional Release Act, in that timely consultation with the Inmate Committee did take place.
. . .
4, 5 and 6. The existing sources of legal authority, underlying principles and correctional knowledge justify and allow the prohibition of smoking in ALL buildings at WHI, including the living accommodations proved to inmates. The policy is consistent with the Corrections and Conditional Release Act and Regulations, other applicable statutes and regulations and policies of the Government of Canada. Smoking is not a guaranteed right under the Charter, nor is it evidence of discrimination for WHI to further restrict its practice to the outdoors. Authorities at WHI were very clear in advising the population that tobacco was not being banned within the institution, rather, that all buildings were being declared non-smoking.
. . .
9. The consent of the inmate population for implementing a pilot project of this nature and extent is not required. If an inmate fails to abide by institutional rules governing the conduct of inmates, disciplinary sanctions may be applied in accordance with Commissioner's Directive 580, Discipline of Inmates.
[9] It is this decision which the applicant now seeks to have set aside. In order to grant the relief sought this Court, in accordance with subsection 18.1(4) of the Federal Court Act, must be satisfied that in rendering the decision the Correctional Service of Canada exceeded or failed to exercise its jurisdiction, failed to observe a principle of natural justice, erred in law in making its decision, based its decision on an erroneous finding of fact made in a perverse or capricious manner or, acted in a way that was contrary to law.
[10] Having carefully reviewed all of the material before the Court, I am unable to ascertain that there is a reviewable error of this nature such as would warrant interference with the Commissioner's decision. It is clear from all of the evidence that the decision reached on the third level grievance was within the jurisdiction of the Correctional Service of Canada as provided for in the grievance process. Furthermore, the decision takes into consideration the submissions of the applicant at each level of that process. Nor is there any indication that the applicant was denied procedural fairness. Indeed, the Commissioner's final decision was delayed until further submissions of applicant's counsel could be considered. The impugned decision is comprehensive and addresses all of the questions posed by the applicant in its third level grievance. Finally, I am satisfied that the CSC took into account all of the relevant material in rendering its decision as evinced by its extensive outline of the facts before it.
[11] In their written submissions, the applicant and the respondents address the issue of whether the smoking policy at WHI was instituted in a lawful manner. The applicant maintains that the policy was imposed in an unfair and arbitrary manner and that the Inmate Welfare Committee was not properly consulted by the administration concerning implementation of the policy. The respondents on the other hand, maintain that these allegations are not supported by the evidence.
[12] However, that is not an issue for this Court to determine on a judicial review application. All of the arguments and submissions in that regard were before the Commissioner and were taken into consideration before the impugned decision was rendered. It is not the function of this Court to revisit these arguments and to then either agree or disagree with the Commissioner's conclusion. Provided there is evidence capable of supporting the decision in question, and I am satisfied that there is, there is no basis for interfering with that decision, even if the Court might not have reached the same conclusion.
[13] For all of these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
March 11, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-554-02
STYLE OF CAUSE: Inmate Welfare Committee of William Head Institution
v. Michael Gallagher et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 21, 2003
REASONS FOR Order : Rouleau, J..
DATED: March 11, 2003
APPEARANCES:
Mr. John R. Pinkney FOR APPLICANT
Mr. Malcolm Palmer FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. John R. Pinkney, Applicant Representative FOR APPLICANT
Victoria, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General for Canada