T-2533-87
Gail Horii (Plaintiff)
v.
Réal LeBlanc, in his capacity as Commissioner of
Corrections, and Rodger B. Brock, in his capacity
as Warden of Mission Institution, at Mission,
British Columbia, and T. A. Jones and Blaine
Hadden, in their capacity as the Regional Trans
fer Board of the Pacific Region of the Correction
al Service (Defendants)
INDEXED AS: HORII V. CANADA (COMMISSIONER OF
CORRECTIONS)
Trial Division, Reed J.—Vancouver, December 2;
Ottawa, December 8, 1987.
Penitentiaries — Female convict seeking to enjoin transfer
to Prison for Women at Kingston from hospital area of
Mission Institution, medium security male institution in B.C.
— Convict's husband, in B.C., having serious heart condition
— Convict wishing B.C. incarceration to aid husband's recov
ery — No federal penitentiary for women in B.C. — Whether
lack thereof sex discrimination contrary to Charter s. 15
Whether business of courts to say how prisons run — Convicts
not having choice of institution — Courts will review transfer
decisions where Charter guarantees breached — Administra
tive practice, not federal law, here challenged — Practice
constrained by availability of facilities — Not obvious right to
be incarcerated in home province flowing from Charter — If
situation contravening Charter s. 15, authorities needing time
to remedy situation — Injunction denied for insufficient
evidence.
Constitutional law — Charter of Rights — Equality rights
— Action for declaration failure to provide federal facilities or
arrangements for incarceration of female convicts in British
Columbia constituting sex discrimination contrary to Charter
s. 15 — Application for interlocutory injunction to stop trans
fer from temporary accommodation in hospital area of penal
institution for men in B.C. to Prison for Women in Kingston,
Ontario — Husband critically ill in B.C. — In short term,
balance of convenience in plaintiff's favour — Serious issue to
be tried — Interlocutory injunctions with exemption effect not
inappropriate in Charter cases — No foreseeable floodgate
effect — Granting injunction indefinitely prolonging tempo
rary solution would change, not preserve status quo — Not
obvious right to be incarcerated in home province flowing from
Charter — Insufficient evidence as to actual requirements and
availability of alternative accommodation in home province —
Injunction denied.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 7, 15, 24.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110.
REFERRED TO:
Cline v. Reynett et al., order dated March 18, 1981,
Federal Court, Trial Division, T-894-81; Butler v. The
Queen et al. (1983), 5 C.C.C. (3d) 356 (F.C.T.D.);
Gould v. Attorney General of Canada et al., [1984] 2
S.C.R. 124, affg [1984] 1 F.C. 1133 (C.A.); Pacific
Trollers Association v. Attorney General of Canada,
[1984] 1 F.C. 846 (T.D.); Arctic Offshore Limited v.
Minister of National Revenue (1986), 5 F.T.R. 300
(F.C.T.D.); Morgentaler et al. v. Ackroyd et al. (1983),
42 O.R. (2d) 659 (H.C.); Re: Anaskan and The Queen
(1977), 15 O.R. (2d) 515 (C.A.); Bruce v. Yeomans,
[1980] I F.C. 583 (T.D.); Re Hay and National Parole
Board et al. (1985), 21 C.C.C. (3d) 408; 13 Admin. L.R.
17 (F.C.T.D.); Collin v. Lussier, [1983] I F.C. 218
(T.D.).
COUNSEL:
T. E. La Liberte for plaintiff.
George C. Carruthers for defendants.
SOLICITORS:
La Liberte, Hundert, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
REED J.: The plaintiff brings an application for
an injunction to restrain the Commissioner of Cor
rections, the Warden of Mission Institution and
the other respondents from transferring her from
the Mission Institution in British Columbia to the
Prison for Women in Kingston, Ontario.
The plaintiff's husband is critically ill. He had a
heart attack on September 15, 1987, further heart
failure on October 12, 1987, a massive cardiac
arrest on October 26, 1987 and yet further heart
failure on November 14, 1987. The defendants do
not contest the fact that he is in a serious condi
tion. Nor do they contest the plaintiff's assertion
that her presence in British Columbia, in a loca
tion which allows her to visit her husband, will
assist in his possible recovery.
The plaintiff was convicted of second degree
murder in May of 1986. She was initially incar
cerated in the Lakeside Womens' Facility in the
Lower Mainland Regional Correctional Centre in
Burnaby, British Columbia. In August, 1986 she
was transferred to the Prison for Women in Kings-
.ton. Apparently, there are no federal penitentiary
facilities for women in British Columbia.
The plaintiff was transferred back to British
Columbia, to the Mission Institution, on October
29, 1987. While in Kingston she repeatedly
requested that she be returned to British
Columbia. She wished to be close to her husband.
The October transfer was carried out after a letter
had been presented to her and her signature
obtained thereon. The letter states that its purpose
is:
... to confirm the Correctional Service of Canada's willingness
to transfer you to Mission Institution for a 30 day period. At
the completion of that 30 days, arrangements will then be made
to transfer you back to the Prison for Women, Ontario.
Then a series of conditions were listed in the letter
which can generally be described as requiring good
behaviour during the 30 days (no fasting, co-oper
ation with administrative staff in implementing the
transfer and no efforts to be made to delay her
return to Kingston at the end of the 30 day
period).
Mission Institution is a medium security institu
tion for males. The plaintiff has been housed in the
hospital area of that institution. The defendants do
not contest the plaintiff's contention that she is not
a security risk, that her behaviour, apart from her
efforts to remain in British Columbia, has been
exemplary. The actions which she has taken to try
to put pressure on prison officials, to enable her to
return to, and, to remain in British Columbia
involved periods of fasting while in Kingston and,
now, the threat that she will sit down and have to
be carried if officials return her to Kingston (pas-
sive resistance).
On November 30, 1987, the regional director for
the Pacific Region of the Correctional Service of
Canada issued a warrant to transfer the plaintiff
back to Kingston. The plaintiff filed a statement of
claim seeking a declaration that the failure of the
defendants to provide federal facilities or make
other arrangements to provide for the incarcera
tion of women in British Columbia constitutes
discrimination on the basis of sex and is contrary
to section 15 of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)]. Such facilities are available for men
in each province. Thus men may be incarcerated
near their families while this is not the case for
women.
In addition to seeking a declaration the plaintiff
seeks injunctive relief and such other remedies as
may be available pursuant to section 24 of the
Charter. The defendants agree that the plaintiff
has raised a serious and significant Charter issue.
Counsel for the defendants indicated that part of
his concern, about according the plaintiff the
injunctive relief sought, was that it might be tan
tamount to giving her a permanent remedy
because of the number of years he expected it
would take to get the Charter issue finally deter
mined by the Supreme Court.
With respect to the balance of convenience it is
clear that in the short term, at least, it is in the
plaintiff's favour. Her husband is seriously ill. The
defendants admit her presence here is a benefit to
him from a health point of view. To require her to
return to Kingston now, in the absence of compell
ing reasons, seems very very heavy handed indeed.
The defendants' reasons as set out in Mr. McGre-
gor's affidavit are:
In order to accommodate GAIL HORII'S special circumstances,
the operations at Mission Institution's Health Care Unit were
modified to accommodate her. Since it was anticipated that this
would be a temporary housing, special arrangements for
supervising her were made on a 24 hour basis. The facility,
however, is not designed for long term care and Mission
Institution does not have the staffing resources to provide
ongoing supervision. Any continuation of GAIL HoRIi's stay will
have significant impact on the overall operation of Mission
Medium Security Institution.
I was given to understand, by counsel for the
defendants, that about one half the total number
of women from British Columbia, who should be
incarcerated in federal institutions, are in fact kept
in British Columbia, by agreement with provincial
institutions. Such placement depends on the avail
ability of beds in those institutions. Also, counsel
for the defendants indicated that the transfer back
to Kingston should not be taken as an indication
that the plaintiff would not subsequently be
brought back to British Columbia, for another
temporary stay, if the prison officials decided it
appropriate to do so. From the above, I cannot
conclude that there are pressing reasons of an
emergency type nature which require the defend
ants to move the plaintiff. At the same time, her
continued presence at Mission is obviously
administratively inconvenient. I think a fair con
clusion from the facts is that the defendants have
decided to transfer the plaintiff to demonstrate
that it is their prerogative to do so. Certainly there
are no specific facts set out in the evidence which
demonstrate a pressing need to do so.
The main arguments on the defendants' behalf,
which were put by counsel, are: (1) the courts have
no business telling prison officials how to adminis
ter a prison, see Cline v. Reynett et al. (order
dated March 18, 1981, Federal Court, Trial Divi
sion, Court file number T-894-81); Butler v. The
Queen et al. (1983), 5 C.C.C. (3d) 356
(F.C.T.D.); (2) to give the plaintiff the interlocu
tory injunction she seeks is really to give her the
Charter right she asserts before such right has
been established, see Gould v. Attorney General of
Canada et al., [1984] 2 S.C.R. 124, affirming
[1984] 1 F.C. 1133 (C.A.); see also Pacific Troll -
ers Association v. Attorney General of Canada,
[1984] 1 F.C. 846 (T.D.); and Arctic Offshore
Limited v. Minister of National Revenue (1986), 5
F.T.R. 300 (F.C.T.D.) which refers to Morgental-
er et al. v. Ackroyd et al. (1983), 42 O.R. (2d)
659 (H.C.), at page 668; (3) the status quo con-
sists of a situation in which the prison authorities
have absolute right to determine where an inmate
will be incarcerated and in this case the plaintiff
was brought to British Columbia on the express
understanding that it was for a 30 day period only
and that she would co-operate with officials in her
retransfer back to Kingston at the end of that
time.
With respect to the first argument, it is true that
the courts tend to show deference to decisions
made by penitentiary officials, for the reasons
given in the cases cited. Also, inmates do not have
a right to be incarcerated in one institution rather
than another. Although, I think it is recognized
that there are often penological advantages in
having an inmate incarcerated in an institution
close to his or her family. For decisions which have
held that there is no "right" in a prisoner to be in a
particular institution, see: Re: Anaskan and The
Queen (1977), 15 O.R. (2d) 515 (C.A.); Bruce v.
Yeomans, [1980] 1 F.C. 583 (T.D.).
This traditional deference of the Courts towards
the decision of prison officials must however be
read in the light of post-Charter cases which have
demonstrated a willingness to review certain trans
fer decisions at least where breaches of section 7
Charter guarantees have been in issue. Re Hay
and National Parole Board et al. (1985), 21
C.C.C. (3d) 408; 13 Admin. L.R. 17 (F.C.T.D.);
Collin v. Lussier, [1983] 1 F.C. 218 (T.D.).
With respect to the second argument, while the
Supreme Court did indicate, in the Gould decision,
that it was not appropriate to grant interlocutory
injunctions in Charter cases, a fuller explanation
of the applicable rules is found in the more recent
case of Manitoba (Attorney General) v. Met
ropolitan Stores Ltd., [1987] 1 S.C.R. 110. In that
case, Mr. Justice Beetz writing for the Court
indicated that the application of the principle of a
presumption of constitutional validity, in a literal
sense, to cases involving Charter challenges was
inconsistent with the "innovative and evolutive
character" of the Charter (see page 122). He drew
a distinction between interlocutory injunctions in
the context of Charter cases which have a "suspen-
sion" effect and those which have an "exemption"
effect. An injunction which prevents a public au
thority from enforcing, in a general way,
impugned provisions of a statute has a suspension
effect. One which enjoins a public authority from
enforcing impugned provisions against a specific
litigant has an exemption effect. Secondly, some
exemption type injunctions can be tantamount to a
suspension case if the precedent which is created,
in issuing the injunction, would thereby lead to a
multitude of similar individual injunctions being
successful. Mr. Justice Beetz wrote, at pages
147-148:
In a case like the Morgentaler case ... to grant a temporary
exemption from the provisions of the Criminal Code to one
medical doctor is to make it practically impossible to refuse it
to others ....
This being said, I respectfully take the view that Linden J.
has set the test too high in writing in Morgentaler, supra, that
it is only in "exceptional" or "rare" circumstances that the
courts will grant interlocutory injunctive relief. It seems to me
that the test is too high at least in exemption cases when the
impugned provisions are in the nature of regulations applicable
to a relatively limited number of individuals and where no
significant harm would be suffered by the public ....
On the other hand, the public interest normally carries
greater weight in favour of compliance with existing legislation
in suspension cases when the impugned provisions are broad
and general and such as to affect a great many persons. And it
may well be that the above mentioned test set by Linden J. in
Morgentaler, supra, is closer to the mark with respect to this
type of cases ....
He continued at page 149:
In short, I conclude that in a case where the authority of a
law enforcement agency is constitutionally challenged, no inter
locutory injunction or stay should issue to restrain that author
ity from performing its duties to the public unless, in the
balance of convenience, the public interest is taken into con
sideration and given the weight it should carry.
In the present case, it is not a general federal
law which is being challenged but rather the
administrative practices of the prison officials.
Practices which admittedly are constrained by the
availability of physical facilities. Counsel for the
defendants is concerned that if this plaintiff is
successful, all other women who are incarcerated
outside their home province will be entitled to an
injunction returning them to their home province,
to be incarcerated there—a situation which he
argues would be administratively impossible.
There is no evidence on the file indicating how
many people would be involved or indeed, whether
such a situation would be administratively impos
sible. I was informed by counsel for the plaintiff
that insofar as British Columbia is concerned,
there are 17 women incarcerated outside the prov
ince (i.e. in Kingston). At the same time, the
crucial factor which weighs the balance so heavily
in the plaintiff's favour is her husband's health
condition. This type of factor is not likely to
pertain with respect to many other inmates and
thus they are not likely to demonstrate that the
balance of convenience weighs in their favour.
What then of the status quo argument. The
plaintiff was transferred to Mission on a tempo
rary basis for humanitarian reasons; special
arrangements were made to house her in the hospi
tal area of a male medium security institution; an
undertaking was obtained from her that she would
co-operate with officials when she was to be
retransferred to Kingston and she would not
engage in efforts to delay that transfer. In a sense
she had little choice but to sign this undertaking;
failure to do so would have resulted in her being
kept in Kingston. However, both the undertaking
and the fact that she is housed under a special
emergency type of arrangement, which was
designed for a temporary period only, are impor
tant in this case. If an interlocutory injunction is
granted, penitentiary officials would be required to
continue what was designed by them as a tempo
rary emergency arrangement for a longer, some
what indefinite, period of time. Interlocutory
injunctions are designed to preserve the status
quo. I am not convinced that issuing an injunction
in this case could be characterized as preserving
instead of changing the status quo.
In any event, the most significant factor in my
view is the nature of the Charter right being
asserted. It is not obvious from the face of the
Charter itself that the right being asserted by the
plaintiff (to be incarcerated in her home province)
is one that flows from the Charter. This is one of
those cases to which Mr. Justice Beetz refers in
the Metropolitan Stores case, which a motions
judge cannot decide without extensive evidence
and argument thereon. Whether the absence of
physical penitentiary facilities for women in their
home province constitutes discrimination on the
basis of sex is a nice question. This is particularly
so when this different treatment has arisen
because, historically, there have been far fewer
women inmates than men. What is more, if such
lack of facilities does constitute unequal treatment
under the law, and therefore constitute a breach of
section 15, it is the kind of case in which the
remedy the courts would likely impose, would be
one giving the authorities a certain amount of time
to remedy the situation. This of course, would
depend on the evidence as to what was required
and the extent to which alternative type accommo
dation could be provided in the home province.
None of this kind of evidence is of course available
to me on this motion. In the circumstances, I do
not think it appropriate to exercise the Court's
discretion and grant an injunction in the appli
cant's favour.
For the reasons given the plaintiff's application
will be dismissed.
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