William Head Institution v. Canada ( Commissioner of Corrections )
T-1945-97
Richard A.C.J.
10/3/99
53 pp.
Judicial review of decision to proceed with implementation of Millenium Telephone System in Correctional Service of Canada (CSC), Pacific Region-Applicants inmates, one from each of eight penitentiaries in British Columbia-In November 1994 CSC deciding to implement new phone system nationally to enhance security of public institutions, public safety-Under new system inmates only able to call collect at cost to recipient of $1.75 to $2.75 per call-Rates fixed by BC Tel-Previously inmates able to make local calls for free-New system including certain improvements in telephone service for inmates, means to assist in prevention, suppression of criminal, other improper inmate activities related to use of phones-After new system operational in Ontario in 1996, Commissioner's Directive 085 issued, setting out policies concerning written, telephone communications-Hunter v. Canada (Commissioner of Corrections), [1997] 3 F.C. 936 (T.D.) upholding legality of new system, except for voice-over feature-Application dismissed-(1) Whether application out of time as beyond 30-day time limit permitted by Federal Court Act, s. 18.1 and if so, should extension of time be granted by Court-Applicants contending time limit for filing runs from August 15, 1997, date respondents communicated decision to implement new telephone system in B.C. penitentiaries to applicants-Decision to implement new telephone system across country giving rise to ongoing situation-Correspondence between parties explaining delay in filing of originating notice of motion-Demonstrating parties had agreement to postpone filing of present application, pending decision in Hunter-Applicants satisfying requirements for extension of time if needed-Demonstrating by grievances, letters, continuing intention to bring proceedings against respondents-Arguable case as Court already determining serious question to be tried in interlocutory injunction proceeding-In interests of justice to grant extension of time-(2) Whether cost of $1.75 to $2.75 required for local call in Pacific Region violating Charter, ss. 7, 10(b), 15, and if so, whether infringement justified under s. 1-(i) Respondents' submission not providing free phone service constituting government inaction, outside scope of Charter, rejected-Government implemented positive policy based on security considerations-(ii) Applicants submitting decision to implement Millenium Telephone System impeding right to be transferred to lower security facilities, to make plans for release, causing them to spend longer period in custody, without due process, contrary to common law duty to act fairly, principles of natural justice, Charter, s. 7-Alleging inability to establish, maintain positive community, family relationships because of reduced ability to place local telephone calls will deprive inmates of opportunity to reintegrate themselves into society as law abiding citizens-Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441 holding violation of right protected by Charter must not be merely speculative-Applicants not demonstrating real threat of violation of Charter, s. 7 (right to life, liberty, security of person, and right not to be deprived thereof except in accordance with principles of fundamental justice)-Supporting arguments purely speculative with no factual evidence to support them-Implementation of new telephone system not in itself constituting violation of Charter, s. 7-Main issue based on economic matter: costs of local calls generated by new telephone system-Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927 ruling Charter not offering protection based on economic grounds-As to whether Charter, s. 7 right existing with respect to economic rights fundamental to human life or survival, judge requiring clear mandate to enter arena, not provided by s. 7-Implementation of new telephone system not constituting substantial change in conditions of detention of inmates as Cunningham v. Canada, [1993] 2 S.C.R. 143 held required to warrant constitutional protection-(iii) Decision to implement new telephone system not breaching Charter, s. 10(b) (right on arrest, detention to retain, instruct counsel without delay)-Penitentiaries implementing specific policies to assure inmates access to telephone to protect rights-(iii) Two-step test for breach of s. 15 (right to equal protection, benefit of law without discrimination): whether distinction resulting in denial of equality before or under law, or equal protection or benefit of law; whether denial constituting discrimination on basis of enumerated or analogous ground-Applicants not denied equal protection of, benefit under law-Applicants accepting no claim of infringement of s. 15 rights if rate for local calls 25¢ or if debit card used-Administrative phones available in special circumstances-No discrimination based on grounds relating to personal characteristics of individual, group-Distinction based on economic situation of inmates-Charter only protecting "economic rights" when such protection necessarily incidental to protection of worth, dignity of human person-Economic right herein not incidental to protection of another right directly related to worth, dignity of human person-Inmates still have right to use phone to communicate with families; still allowed to receive, send letters; receive visitors-$1.50 or $1.75 per call not so excessive as to prevent any contact whatsoever-Group described as "poor prisoners" not analogous group under s. 15-Analysis of O'Driscoll J. in Masse v. Ontario (Ministry of Community & Social Services) (1996), 40 Admin. L.R. (2d) 87 (Ont. Div. Ct.) adopted: class of social assistance recipients heterogeneous; status not personal characteristic within s. 15-Poverty embracing many more persons than those in receipt of social assistance-Discrimination herein depending more on financial situation of recipients of inmate's calls than on inmate's financial situation-Prisoners, inmates not constituting analogous group: Sauvé v. Canada (Chief Electoral Officer), [1996] 1 F.C. 857 (T.D.)-(iv) Implementation of new telephone system reasonable, demonstrably justified in free, democratic society-Objective of sufficient importance, means used proportionate-(3) Whether respondents exceeding jurisdiction under Corrections and Conditional Release Act (CCRA), Regulations (CCRR) by implementing charge for local calls-Applicants submitting inmates had no opportunity to make representations before implementation of new telephone system contrary to CCRA, s. 74-Statutory obligation under this section not applicable to security matters-Respondents not obliged to consult inmates before making decision to implement new telephone system-Respondents attempting to involve inmates as much as possible, in implementation of system, by consultation with inmate committees in order to determine phone numbers to be included on common access list-Nothing in Act, s. 71(1), Regulations, s. 95, Commissioner's Directive 085, compelling respondents to give local telephone access to inmates at no cost-Implementation of system not violating CCRR, s. 95, dealing with communication with person-Nothing in new telephone system preventing contact by mail-Commissioners Directive 085 not preventing inmates from making phone calls-Decision to implement new telephone system not contravening CCRR-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], ss. 1, 7, 10, 15-Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 71, 74-Corrections and Conditional Release Regulations, SOR/92-620, s. 95.