PENITENTIARIES
Applicant, inmate at Mission Institution, has serious visual handicap—Difficulty watching 14‑inch television monitor, prefers watching 22‑inch computer monitor using TV tuner card—Possession of such card authorized at time applicant obtained computer in 1997—Directive by Commissioner (of Correctional Service Canada) No. 90 (Directive No. 90), entitled “Personal Property of Inmates”, amended in 2003 to limit purchasing new computers and updating computers obtained by inmates prior to October 2002, and currently prohibits possession of TV tuner cards and storage units—In 2004, prison authorities at Institution confiscated applicant’s computer to remove TV tuner card and storage unit— Application for judicial review regarding validity of Directive as well as validity of various administrative actions later taken under supposed authority of Commissioner—In interest of justice to hear matter, regardless of possibility of internal remedies to challenge administrative decision disputed by applicant—In effect, applicant disputing validity of Directive No. 90, and no internal appeal from Commissioner’s decision —Further, applicant arguing Charter, s. 24 breached, meaning that had applicant filed grievance with Commissioner, Commissioner in conflict of interest since might eventually be called to rule on scope and legality of own decision—Court therefore proceeded to analyze merits of application—Inaction by Correctional Service Canada (with regard to removal of TV tuner card and storage unit from applicant’s computer) tacit acceptance of argument that applicant possessed acquired rights, and lack of concrete action by respondent with respect to peripheral equipment suggested use did not pose reasonable risk—Application allowed—Prison authorities acted in perverse and capricious manner by confiscating applicant’s computer in order to remove TV tuner and storage unit— Considering fact applicant’s acquired rights clearly upheld by Appendix A of Directive No. 90, stating inmates already authorized to possess non‑compliant computers or peripherals can keep them despite fact specifications from Appendix A not met, not necessary for Court to base reasoning on Charter, s. 15—Although adoption of coherent predictable policy on safety of personnel and even of prison population (e.g. Directive No. 90) of cardinal importance in penitentiary system, Directive No. 90 also recognizes certain individuals suffering from visual or physical handicaps need, under certain conditions, to use peripherals and software adapted to their needs—Applicant such individual—Also not necessary to decide whether loss of disputed peripherals infringement of Charter, s. 15, because current policy authorizes possession of non‑compliant computers and peripherals in case of inmates authorized to keep equipment before October 2002— Applicant obtained such authorization—Prison authorities’ removal of storage unit and TV tuner card therefore contrary to Corrections and Conditional Release Act (under which applicant entitled to range of appropriate programs designed to meet his needs) and applicant’s acquired rights—Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]— Corrections and Conditional Release Act, S.C. 1992, c. 20.
Poulin v. Canada (Attorney General) (T‑1628‑04, 2005 FC 1293, Martineau J., order dated 20/9/05, 20 pp.)