Federal Court Decisions

 

Date: 20070226

Docket: T-904-06

Citation: 2007 FC 219

Ottawa, Ontario, February 26, 2007

PRESENT:     The Honourable Madam Justice Mactavish

 

 

BETWEEN:

BRIAN DEARNLEY on his own behalf and

on behalf of all the aboriginal inmates incarcerated at Warkworth Institution

Applicants

and

 

THE ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Several times a year, prisoners at Warkworth Institution organize “family reintegration days”.  Family reintegration days provide prisoners with an opportunity to invite family and friends to the institution for a day of festivities.  In addition to having the opportunity to visit with friends or family members, those attending family reintegration days are also provided with food, activities and games.  

 

[2]               Family reintegration days have been described as being akin to a company picnic or community barbecue, without the alcohol.

[3]               For many years, inmates at Warkworth were able to pay for their own and their guests’ attendance at family reintegration days out of their institutional savings accounts.  That changed, however, in 2006, when inmates were advised that from that point forward, payment would have to be made out of their current accounts. 

 

[4]               Brian Dearnley is the Chairman of the Inmate Committee at Warkworth Institution.  By this application, he seeks judicial review of this decision, asserting that the Commissioner of the Correctional Service of Canada lacked the jurisdiction to prevent inmates from using money in their savings account to pay for attendance at family reintegration days.

 

[5]               Mr. Dearnley also asserts that in prohibiting inmates from paying for attendance at family reintegration days out of their saving accounts, the Commissioner failed to use the least restrictive measures available, contrary to the provisions of subsection 4(d) of the Corrections and Conditional Release Act (the “CCRA”).

 

Legislative Regime

[6]               In order to understand the issues raised by this case, it is first necessary to review the legislation and policies governing the administration of inmates’ bank accounts within the federal correctional system.

 

[7]               The starting point for this review is subsection 96(q) of the CCRA, which authorizes the Governor in Council to make regulations providing for inmates’ moneys to be held in trust accounts. Subsection 97(4) of the Act allows the Commissioner to make rules for carrying out the purposes and provisions of the relevant provisions of the Act.

 

[8]               Section 111 of the Corrections and Condition Release Regulations provides that:

 

[9]               Also of relevance to this proceeding is Commissioner’s Directive 860, first introduced in 1998, which is entitled “Inmate[s’] Money”.  The introductory paragraphs of the Commissioner’s Directive set out the policy rationale underlying the Directive, which is, amongst other things:

            1.         To encourage inmates to budget so that funds are available

                        for authorized expenses and for their release.

            2.         To control the flow of money in institutions to ensure the

                        safety of persons and the security of the penitentiary.

 

[10]           Paragraphs 13 and 14 of the Directive provide that 90% of the income received by inmates from their employment within the institution is to be deposited in the inmate’s current account, to a maximum of $69 every two weeks.  The remaining 10% is to be deposited in the inmate’s savings account.

 

[11]           In accordance with paragraph 16 of the Commissioner’s Directive, all other moneys brought into the institution by the inmate, or received by the inmate from outside sources during his or her incarceration are to be deposited into the inmate’s savings account.

 

[12]           Withdrawals from inmates’ accounts are governed by paragraphs 19 to 26 of the Commissioner’s Directive.  Of particular note is paragraph 19, which permits withdrawals from inmates’ current accounts for “family assistance” and “community celebrations”, amongst other things.

 

[13]           Transfers of funds from an inmate’s savings account into the inmate’s current account are permitted, provided that such transfers support either the inmate’s correctional plan, or constructive and legitimate inmate activities. However, such transfers may not exceed $500 in total, and cannot occur on more than four separate occasions during each fiscal year.

 

[14]           However, paragraphs 22 and 23 provide for the withdrawal of funds over and above the $500 limit in certain exceptional circumstances.  These provisions state that:

22.   Withdrawals above the $500 limit for family related reasons shall be based on a case by case review and be consistent with the Mission Document. The Institutional Head or delegate is authorized to determine the amount of such withdrawals. These requests are subject to reasonable verification to ensure that the funds are used for the stated purpose.

 

23.   The Institutional Head or delegate may authorize, on a case by case basis, requests for withdrawals above the $500 limit to pay for legal fees and related costs, private family visits, correspondence and post-secondary courses and related materials, and smoking cessation products if authorized by Health Services. Requests are subject to reasonable verification to ensure that the funds are used for the stated purpose. 

 

[15]           According to the affidavit material filed by the respondent, these provisions were included in the Directive to allow inmates to assist their families in covering urgent or necessary costs arising while inmates are incarcerated.

 

[16]           With this understanding of the legislation and policies governing the administration of inmates’ bank accounts, I turn now to review the facts giving rise to this application for judicial review.

 

Background

[17]           Family reintegration days organized and funded by inmates are held at correctional facilities across Canada on a regular basis.  At Warkworth Institution, the Inmate Committee typically organizes three such events each year. 

 

[18]           Inmates and guests are charged a small fee to attend family reintegration days at Warkworth.  The record contains an example of the fee structure for such an event, and indicates that adults would be charged $10 to attend, older children are charged $7.50 each, with a ticket for a young child costing $5.00.

 

[19]           For many years, inmates at Warkworth Institution were permitted to pay for these tickets with money from their savings accounts.  However, in May of 2005, Warkworth underwent an audit by the Ontario Regional Headquarters of the Correctional Service of Canada, which determined that Warkworth administration had misinterpreted paragraph 22 of the Commissioner’s Directive No. 860. 

 

[20]           According to the Ontario Regional Headquarters, the administration at Warkworth had erroneously interpreted the phrase “family related matters”, as the phrase was used in paragraph 22 of Commissioner’s Directive 860, to include inmate-organized events such as family reintegration days, with the result that payment for such events was being permitted out of inmates’ savings accounts.

 

[21]           Warkworth Institution was evidently alone in its interpretation of the Commissioner’s Directive, as inmates at all of the other federal institutions across Canada were required to purchase tickets for family reintegration days with monies taken out of their current accounts.

 

[22]           After an exchange of e-mails between the auditors and CSC’s National Headquarters, the administration at Warkworth was directed to cease the practice of allowing inmates to pay for attendance at family reintegration days out of their savings accounts.  It is this direction, and its subsequent implementation at Warkworth Institution, that is the decision under review in this case.

 

[23]           It appears that there was some confusion in implementing this change of policy at Warkworth. Although the institution was informed of CSC’s audit results in May 2005, the change in policy was not implemented until after the June 24, 2006 Family Integration Day.  Because there had been some confusion on the part of inmates and staff within the Institution with respect to the apparent change in policy, implementation of the change in policy was delayed to give inmates a reasonable opportunity to budget for future events.

 

[24]           It also bears noting that the decision to allow inmates to pay for the June 24, 2006 Family Integration Day out of their savings accounts was made after Mr. Dearnley filed a motion for an interlocutory injunction enjoining the Commissioner of Correctional Services from disallowing the use of funds in inmates’ savings accounts to purchase tickets for family reintegration days. 

 

[25]           By order dated July 18, 2006, Justice Russell dismissed Mr. Dearnley’s motion.  Although Justice Russell was satisfied that Mr. Dearnley had raised a serious issue with respect to the change in policy, he was not persuaded that the potential inability of certain inmates to attend family reintegration days between the time that the motion was heard and the hearing of the application for judicial review itself would amount to irreparable harm.

 

[26]           In the meantime, on May 31, 2006, Mr. Dearnley filed this application for judicial review of the decision requiring that inmates pay for attendance at future family reintegration days out of their current accounts. 

 

[27]           No issue has been taken by the respondent either with respect to the timeliness of Mr. Dearnley’s application, or with respect to his failure to access the internal grievance process. 

 

Issues

[28]           Mr. Dearnley has identified the issue raised by this application for judicial review as being whether Commissioner’s Directive 860 confers jurisdiction on the Commissioner of Correctional Services to limit inmates’ access to their savings for legitimate purposes.

 

[29]           Although Mr. Dearnley’s Notice of Application also asserts that the actions of the Commissioner violated several sections of the Canadian Charter of Rights and Freedoms, this argument was not addressed by Mr. Dearnley in his memorandum of fact and law, and was expressly abandoned at the commencement of the hearing.        

 

Standard of Review

[30]           Relying on the decision of this Court in Bissonnette v. Commissioner of Corrections (1996), 122 F.T.R. 166, Mr. Dearnley submits that the issue on this application raises a question of law, and as such, should be reviewed against the standard of correctness.

 

[31]           In contrast, the Attorney General suggests that Commissioner’s Directives are policy documents whose interpretation and application involve factual questions, which are reviewable against the standard of patent unreasonableness.

 

[32]           Although Mr. Dearnley characterizes the issue raised by his application for judicial review as jurisdictional in nature, it is quite clear that the applicable provisions of the Corrections and Condition Release Act and Regulations authorize the Commissioner of Correctional Services to make rules with respect to inmates’ access to the moneys held in their institutional bank accounts.  What is really at the heart of Mr. Dearnley’s application for judicial review is the CSC’s interpretation of Commissioner’s Directive 860 as it relates to the facts of this case.

 

[33]           Commissioner’s Directives are not “laws” as such, but rather are statements of administrative policy: See Martineau v. Matsqui Institution, [1978] 1 S.C.R. 118, and Hunter v. Canada (Commissioner of Corrections), [1997] F.C.J. No. 959. 

 

[34]           It is clear that decisions relating to the interpretation of Commissioner’s Directives are entitled to some deference: see, for example, Schaefler v. Canada (Solicitor General), 2004 FC 517.  It is not necessary, however, for me to decide whether the decision should be reviewed against the standard of reasonableness or that of patent unreasonableness, as I am of the view that the interpretation of Commissioner’s Directive 860 in issue here was one that was reasonable.

 

Analysis

[35]           Mr. Dearnley concedes that the stated goals of Commissioner’s Directive 860 -  that is, to encourage inmates to budget funds so that they have access to resources on their release from prison, and to control the flow of money into the penitentiary - are legitimate policy objectives. However, he says that a majority of inmates will not be able to participate in Family Reintegration Days unless they can pay for the tickets out of their savings accounts. As such, Mr. Dearnley says, the restrictions are excessive.

           

[36]           In this regard, Mr. Dearnley points to the fact that the amount of money that an inmate is entitled to have deposited into his institutional current account is limited to $69 every two weeks.  Given that the vast majority of inmates are smokers, Mr. Dearnley says that inmates simply do not have the resources necessary to pay for attendance at family reintegration days out of the moneys held in their current accounts

           

[37]           This is so, Mr. Dearnley says, even taking into account the fact that inmates can transfer up to $500 from their savings account into their current account each year.

 

[38]           Mr. Dearnley acknowledges that paragraph 19 of Commissioner’s Directive 860 specifically notes that withdrawals may be made from inmates’ current accounts for family assistance and community celebrations, amongst other things.

 

[39]           That said, Mr. Dearnley points to paragraph 22 of Commissioner’s Directive 860, which specifically contemplates withdrawals from inmates’ savings accounts over and above the $500 limit for “family related reasons”.  Such withdrawals are subject to a case-by-case review by the Institutional head or his or her delegate. Mr. Dearnley says that the desire to purchase tickets to attend a family reintegration day is a “family related reason”, and that, as a result, withdrawals from savings accounts should be permitted for this purpose.

 

[40]           Mr. Dearnley also points to paragraph 23 of Commissioner’s Directive 860, which allows for withdrawals from inmates’ savings accounts over and above the $500 limit for “private family visits”.  In Mr. Dearnley’s submission, a family reintegration day is akin to a private family visit, and inmates should be able to finance each type of visit in the same way.

 

[41]           I cannot accept Mr. Dearnley’s submissions.  Insofar as to paragraph 23 of Commissioner’s Directive 860 is concerned, there is a fundamental distinction between “private family visits”, as the term is used in paragraph 23, and family reintegration days.  Private family visits are part of Corrections Canada programming.  In contrast, family reintegration days are social events, organized by inmates for the inmates and their families.

 

[42]           I do not mean to minimize the importance of family reintegration days to inmates.  Family reintegration days are clearly very important to inmates and to their families, and should be encouraged.  They obviously play an important role in assisting in maintaining the cohesiveness and integrity of family units dealing with very trying circumstances. 

 

[43]           That said, paragraph 19 of Commissioner’s Directive 860 specifically contemplates that payments for “family assistance” and “community celebrations” be made out of inmates’ current accounts.  An inmate-organized family reintegration day is clearly a community celebration.

 

[44]           Commissioner’s Directive 860 is intended to limit inmate access to funds, in part, to reduce criminal activities within penal institutions, such as the drug trade and “muscling” (that is, the extortion of inmates by other inmates).  However, given that payments for tickets to family reintegration days are strictly monitored by the institution, the respondent concedes that allowing inmates to pay for attendance at family reintegration days out of their savings would not raise any security concerns.

 

[45]           However, the Directive has a second purpose, which is to teach inmates to budget, and to ensure that they have access to funds on their release from prison. 

 

[46]           There is no evidence before me of any individuals ever actually being precluded from attending a family reintegration day because of a lack of funds resulting from the decision to bring the policy at Warkworth Institution into conformity with the rest of CSC’s penal institutions.  Nevertheless, I accept that money is tight for many inmates.  This is, however, also a fact of life for many people in the outside world.  Learning to budget and prioritize one’s expenditures is an important life skill, and teaching inmates to budget their funds is part of the policy rationale underlying Commissioner’s Directive 860. 

 

[47]           Moreover, Commissioner’s Directive 860 strikes an appropriate balance between inmates’ ability to access their finds within the institutional setting, while ensuring that an appropriate monetary ‘safety net’ is available to inmates on their release.  In doing so, the policy allows inmates to provide assistance to their families on an urgent basis while the inmate is still incarcerated, while, at the same time, providing the inmate with resources to assist the inmate in re-establishing him- or herself in society after release. 

 

[48]           Given that one of the statutory obligations imposed on CSC is to prepare inmates for release into society, it is, in my view, entirely reasonable to restrict or limit inmates’ access to their savings accounts in the manner in issue in this case. Moreover, I am satisfied that the separation of inmate accounts into savings and current accounts, and the corresponding restrictions on those accounts are the least restrictive measures that could be used to achieve these objectives.

 

Conclusion

[49]           Having concluded that the CSC’s interpretation of the relevant provisions of Commissioner’s Directive 860 is reasonable, and is consistent with the policy considerations underlying the Directive itself, this application for judicial review is dismissed. 

 

[50]           However, as a result of the confusion surrounding, and the inconsistency in the application of the Directive within Warkworth Institution, and in the exercise of my discretion, I decline to make any order as to costs.

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

           

            THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed, without costs.

 

 

“Anne Mactavish”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-904-06

 

STYLE OF CAUSE:                          BRIAN DEARNLEY
v. THE ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    Montreal, Quebec

 

DATE OF HEARING:                      February 1, 2007

 

REASONS FOR JUDGMENT

 AND JUDGMENT :                       

 

DATED:                                             February 26, 2007

 

 

 

APPEARANCES:

 

Ms. Diane Condo Ottawa, Ontario	FOR THE APPLICANT
Ms. Susan Keenan Toronto, Ontario	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

CONDO LAW OFFICE Ottawa, Ontario	FOR THE APPLICANT
JOHN H. SIMS, Q.C Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT