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Date: 20020425 Docket: A-209-99 Neutral citation: 2002 FCA 154 CORAM: ISAAC J.A. BETWEEN: GORDON ALCORN, of William Head Institution DARRELL BATES, of Kent Institution DANNY BOLAN, of Elbow Lake Institution JON BROWN, of Matsqui Institution SHAWN BUTTLE, of Regional Health Centre GARY FITZGERALD, of Ferndale Institution ANGUS MACKENZIE, of Mountain Institution, and FABIAN PICCO, of Mission Institution Appellants and THE COMMISSIONER OF CORRECTIONS and THE DEPUTY COMMISSIONER OF CORRECTIONS, PACIFIC REGION, CORRECTIONAL SERVICE OF CANADA Respondents Heard at Vancouver, B.C., on April 25, 2002. Judgment delivered at Vancouver, B.C. on April 25, 2002 REASONS FOR JUDGMENT BY: SEXTON J.A. Date: 20020425 Docket: A-209-99 Neutral citation: 2002 FCA 154 CORAM: ISAAC J.A. BETWEEN: GORDON ALCORN, of William Head Institution DARRELL BATES, of Kent Institution DANNY BOLAN, of Elbow Lake Institution JON BROWN, of Matsqui Institution SHAWN BUTTLE, of Regional Health Centre GARY FITZGERALD, of Ferndale Institution ANGUS MACKENZIE, of Mountain Institution, and FABIAN PICCO, of Mission Institution Appellants and THE COMMISSIONER OF CORRECTIONS and THE DEPUTY COMMISSIONER OF CORRECTIONS, PACIFIC REGION, CORRECTIONAL SERVICE OF CANADA Respondents REASONS FOR JUDGMENT [1] This is an appeal from the decision of Richard A.C.J., as he then was, who dismissed the application for judicial review brought by eight inmates of penitentiaries in British Columbia (the appellants). [2] In 1994 the Correctional Service of Canada (C.S.C.) decided to implement a new national telephone system in Canadian correctional institutions. It examined various services which were available and concluded after extensive consideration of the potential impact on a number of factors, including inmate telephone practices, that it would implement the Millennium Phone System. Its main purpose was to address difficulties inherent in the previous telephone systems to which prisoners had access. The previous systems had demonstrated problems with respect to safety and security issues, issues related to phone resources and to administrative convenience. The chief goal however of the new system was to improve upon the security of correctional institutions and public safety. [3] Under the Millennium System inmates would no longer be able to make local calls either free of charge or at a cost of 25 ¢ per call as in the past. Instead the new system required inmates to pay for local telephone calls at rates approximately $2.00 per call. These rates were set by the Canadian Radio and Television Commission (CRTC) and were implemented by BC Tel, the local service provider. [4] The appellants challenged the decision to introduce the Millennium System by way of application for judicial review alleging that the respondents in making their decision had violated sections 4, 71(1), 74, 95 and 96 of the Canadian Corrections and Conditional Release Act as well as sections 7, 10(b) and 15 of the Canadian Charter of Rights and Freedoms. Canadian Corrections and Conditional Release Act
Section 74 of the Correction and Conditional Release Act [5] The appellants alleged that no opportunity was given to them to provide input into the decision to implement the new Millennium Telephone System. The learned Motions Judge found as a fact that such opportunity was provided and that in any event there was no statutory obligation to consult with inmates under section 74 where the decision related to security matters. The learned Motions Judge found that the decision to implement the Millennium Telephone System did relate to security matters and the appellants concede this and the fact that security is necessary. Section 71(1) and section 95 and 96 of the Corrections and Conditional Release Act [6] The learned Motions Judge found that the decision to implement the Millennium Telephone System did not prevent an inmate from communicating with other persons and that section 95 and section 71(1) did not compel the respondents to give local telephone access to the inmates at no cost. Charter - Section 15 [7] On appeal the appellants restricted their arguments concerning the Charter to section 15. Specifically they argued that in implementing the Millennium Telephone System the respondents violated the rights of the appellants under section 15 of the Charter by discriminating against them as federal prisoners and/or poor persons who do not have the money to pay for the additional costs imposed by the new system. The learned Motions Judge found that the appellants do not constitute an analogous group under section 15 of the Charter. He was not satisfied that the alleged discrimination invoked by the appellants was based on grounds relating to personal characteristics of the individual or group. He was of the view that any distinction in this case resulting from the new system is based on the economic situation of the inmates and that the Charter would provide no protection in those circumstances. We agree with his conclusions. This Court has held that prisoners per se do not constitute an analogous group under section 15. Sauvé v. Attorney General of Canada [2000] 2 F.C. 117 at 198. [8] The learned Motions Judge noted that the constitutionality of the Millennium Telephone System had been judicially considered by the Trial Division in another case. The decision in that case upheld the constitutionality of the system. We agree with the statements of Mr. Justice Lutfy as he then was in Hunter v. Commissioner of Corrections Canada et al. (1995), 104 F.T.R. 77: The respondents have established the positive objective of enhancing inmate telephone communication to assist rehabilitation. The precautionary objective of controlling those communications that might result in crime is similarly established... I find that both objectives clearly reflect concerns which are pressing and substantial to Canadian society and require no further explanation. Sections 3 and 4 Correction and Conditional Release Act [9] The appellants argued additionally that section 3 of the CCRA sets out the purpose of the federal correctional system, and section 4 sets out the principles that should guide the government in achieving those purposes. Specifically, it was argued that the service utilized should use the least restrictive measures consistent with the protection of public, staff members and offenders. [10] It was submitted that the implementation of the Millennium System did not take the least restrictive measures. [11] It appears to us, from the evidence, that having regard to the concerns about security and the fact that the rates set for the telephone system were set by the CRTC and B.C. Tel and not the respondents, that the respondents have taken the least restrictive measures consistent with the protection of the public, staff members and offenders. General Conclusion [12] We are in agreement with the decision of the learned Motions Judge and agree with the clearly articulated reasons which he gave for his decision. We would say in addition that the complaints of the appellants focus rather on the cessation of the previous local phone service which involved a lesser cost to the inmates than the present system. That subsidized service was not an entitlement and its withdrawal cannot result in discrimination under section 15 of the Charter. [13] In any event, the Appellants concede that the Respondents have made the decision to eliminate the Millennium System and to implement a new system which would result in cheaper telephone rates for prisoners. However, we were told that implementation of this decision has been delayed by reason of litigation and because the new system is still in the developmental stage. The Appellants wish to accelerate the change but were unable to provide the Court with any realistic suggestions as to how cheaper rates could be obtained at the present time. The Appellants simply propose that the Millennium System be immediately removed. That would have the effect of depriving the prisoners of any telephone system at all, which would hardly be an improvement over the present situation. The only alternative suggested by the Appellants is that the Respondents subsidize the inmates. [14] This appeal will be dismissed with costs. (Sgd.) "J. Edgar Sexton" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-209-99 STYLE OF CAUSE:Gordon Alcorn et al. v. The Commissioner of Corrections et al.
PLACE OF HEARING: Vancouver, BC DATE OF HEARING: April 25, 2002 REASONS FOR JUDGMENT : SEXTON J.A. CONCURRED IN BY: ISAAC, MALONE JJ.A. DATED: April 25, 2002 APPEARANCES: Anne Pollak FOR THE APPELLANTS Curtis Workun FOR THE RESPONDENTS SOLICITORS OF RECORD: Prisoners' Legal Services FOR THE APPELLANTS Abbotsford BC Morris Rosenberg FOR THE RESPONDENTS Deputy Attorney General of Canada |
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