Judgments

[1996] 2 F.C. 168

T-1212-94

Clifford Robert Olson (Plaintiff)

v.

Her Majesty the Queen (Defendant)

Indexed as: Olson v. Canada (T.D.)

Trial Division, Heald D.J.—Prince Albert, Saskatchewan, January 11; Ottawa, February 9, 1996.

Constitutional law — Charter of Rights — Fundamental freedoms — Action for declaratory relief plaintiff’s freedom of expression, association under Charter, s. 2(b), (d) infringed by Correctional Service officials — Plaintiff serial killer sentenced to life imprisonment — Access to media restricted to reduce notoriety — Limits on plaintiff’s rights —prescribed by law— under Charter, s. 1 — Legislative objective sufficiently pressing and substantial to justify limitation of plaintiff’s rights, freedoms — Measures chosen to serve objective proportional to it — Requirements of Oakes test met.

Constitutional law — Charter of Rights — Equality rights — Plaintiff serving life sentence for murders — Required to limit contact with media to reduce public notoriety — Distinction drawn between plaintiff, other individuals — Not based on irrelevant personal characteristic under Charter, s. 15(1) — Right to equality not infringed.

Penitentiaries — Plaintiff serial killer, inmate in federal penitentiary S.H.U. — Provision of programs in penitentiaries designed to foster inmate’s rehabilitation, reintegration into community as law-abiding citizen — Plaintiff unable to integrate into institution due to notoriety, high profile — Restricted access to media reducing personal security risk within penitentiary — Reasonable limit, prescribed by law, of Charter-guaranteed freedoms.

This was an action for declaratory relief in which the plaintiff claimed that the defendant has infringed his rights as guaranteed by paragraphs 2(b) and 2(d) and subsection 15(1) of the Charter. In 1982, the plaintiff was sentenced to life imprisonment after being convicted of eleven counts of first degree murder. Ten years later, he was transferred from Kingston Penitentiary to the Special Handling Unit at the Saskatchewan Penitentiary. Some time after his transfer, he was advised by the Assistant Warden that his access to the media was being restricted so as to reduce his notoriety, in order that he could eventually be transferred to a reduced security facility. Therefore, he was prevented by the authorities from corresponding with a friend who was a media personality and from sending him material from the two books he has written. The defendant conceded that the plaintiff’s freedoms of expression and association under paragraphs 2(b) and 2(d) of the Charter have been restricted but denied any infringement of his right to equality as guaranteed by subsection 15(1) of the Charter. Two issues were raised: 1) whether the defendant had infringed the plaintiff’s rights as guaranteed by paragraphs 2(b) and 2(d) and subsection 15(1) of the Charter; 2) if so, whether that infringement was demonstrably justified in a free and democratic society and therefore permitted under section 1 of the Charter.

Held, the action should be dismissed.

1) The Supreme Court of Canada has adopted the following three-step analysis that applies to equality considerations under subsection 15(1): (i) consider whether the law has drawn a distinction between claimant and others; (ii) question whether law imposes a burden on claimant’s group not imposed on others and (iii) assess whether distinction is based on an irrelevant personal characteristic enumerated in subsection 15(1) or one analogous thereto. The facts of the present case met the first and second steps of that analysis since the defendant’s actions in restricting the plaintiff’s access to the media drew a distinction between the plaintiff and other individuals. Moreover, the plaintiff’s group, which could be characterized as inmates of federal penitentiaries, is subject to a number of restrictions resulting in a disadvantage being imposed on this group. However, the third step of the analysis has not been met since the distinction was not based on an irrelevant personal characteristic enumerated in subsection 15(1) or one analogous thereto. The plaintiff’s claim of infringement under subsection 15(1) must fail.

2) Under sections 3 and 4 of the Corrections and Conditional Release Act, the paramount considerations in the correction process are the protection of society and the provision of programs to further the inmate’s rehabilitation and reintegration into the community as a law-abiding citizen. The reduction of the plaintiff’s public notoriety would be necessary as part of his rehabilitation process and to reduce his personal security risk within the prison population, both of these goals being mandated by the Act. The actions taken by the defendant with respect to the plaintiff were pursuant to a law, and the limit imposed on the plaintiff’s Charter rights was “prescribed by law” as that expression is employed in section 1 of the Charter.

The first component of the test enunciated by the Supreme Court of Canada in The Queen v. Oakes is whether the legislative objective, which the measures limiting the plaintiff’s rights and freedoms are designed to serve, is sufficiently pressing and substantial to justify the limitation of those rights and freedoms. According to the evidence of both witnesses called by the defendant, the plaintiff has demonstrated an insatiable desire to receive negative attention for his past crimes, was still considered an “extremely high escape risk” and extremely dangerous. One of these witnesses summarized a report prepared by the Assessment and Program Review Committee by saying that, due to his notoriety and high profile, the plaintiff was unable to integrate into any population in any institution. Based on that evidence, the measures taken to limit the plaintiff’s rights and freedoms were justified to serve pressing and substantial concerns. Restricting plaintiff’s access to the media would reduce his personal security risk within the penitentiary and would also form part of his rehabilitation process with respect to his Narcissistic Personality Disorder. The proposed measures were rationally connected to the objective. The only restriction imposed upon the plaintiff was in relation to his contact with media members. He was permitted communication with all other members of society, including family members, solicitors and friends who are not members of the media. Therefore, the measures chosen impaired the plaintiff’s rights and freedoms as little as possible. The actions taken by Correctional Service Canada met the proportionality test prima facie, since the measures taken did reduce the plaintiff’s media coverage. The restrictions imposed on the plaintiff’s Charter rights were reasonable limits prescribed by law, and were therefore permissable under section 1 of the Charter.

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.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b),(d), 15(1), 24(1).

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 4, 71(1).

Corrections and Conditional Release Regulations, SOR/92-620, ss. 94(1), 102(1).

CASES JUDICIALLY CONSIDERED

APPLIED:

The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201.

REFERRED TO:

Schachter v. Canada, [1992] 2 S.C.R. 679; (1992), 93 D.L.R. (4th) 1; 92 CLLC 14,036; 10 C.R.R. (2d) 1; 139 N.R. 1; Jackson v. Joyceville Penitentiary, [1990] 3 F.C. 55 (1990), 55 C.C.C. (3d) 50; 75 C.R. (3d) 174; 1 C.R.R. (2d) 327; 32 F.T.R. 96 (T.D.); R. v. Therens et al., [1985] 1 S.C.R. 613; (1985), 18 D.L.R. (4th) 655; [1985] 4 W.W.R. 286; 38 Alta. L.R. (2d) 99; 40 Sask. R. 122; 18 C.C.C. (3d) 481; 13 C.P.R. 193; 45 C.R. (3d) 57; 32 M.V.R. 153; 59 N.R. 122; R. v. Thomsen, [1988] 1 S.C.R. 640; (1988), 40 C.C.C. (3d) 411; 63 C.R. (3d) 1; 32 C.P.R. 257; 4 M.V.R. (2d) 185; 84 N.R. 347.

ACTION for declaratory relief based on infringement of plaintiff’s rights as guaranteed by paragraphs 2(b) and 2(d) and subsection 15(1) of the Charter. Action dismissed.

COUNSEL:

Garth V. Bendig for plaintiff.

Bruce W. Gibson for defendant.

SOLICITORS:

Eggum, Abrametz & Eggum, Prince Albert, Saskatchewan, for plaintiff.

Deputy Attorney General of Canada for defendant.

The following are the reasons for judgment rendered in English by

Heald J.:

I.          INTRODUCTION

The plaintiff is an inmate in the Special Handling Unit in the Saskatchewan Penitentiary at Prince Albert, Saskatchewan. The plaintiff claims that the defendant has infringed his rights as guaranteed by paragraphs 2(b) and 2(d) and subsection 15(1) of the Canadian Charter of Rights and Freedoms[1] (the Charter). Accordingly, he seeks declaratory relief pursuant to subsection 24(1) of the Charter.[2]

II.         FACTS

The plaintiff was convicted of eleven counts of first degree murder on January 14, 1982, and was sentenced to life imprisonment without parole eligibility for 25 years on each count, the sentences to run concurrently. He was transferred to the Special Handling Unit at the Saskatchewan Penitentiary from the Kingston Penitentiary on December 6, 1992.

By a memorandum dated September 10, 1993, the plaintiff was advised by the Assistant Warden that his access to the media was being restricted so as to reduce his notoriety, in order that he could eventually be transferred to a reduced security facility. He was also given a copy of a memorandum dated August 30, 1993, which advised him that the Deputy Commissioner had issued instructions that his access to the media was to be restricted. Effective immediately, Peter Worthington, a member of the media was removed from his visitors list and no additional media persons were allowed contact with him. The authorities were empowered to intercept all non-privileged correspondence, to seize all letters to media members and to dispose of them accordingly.

The plaintiff was also given a copy of a letter dated September 14, 1993, written by the Honourable Douglas Lewis, the Minister of Public Security. In that letter, Minister Lewis stated he had recently reinstated a ban on the media interviewing the plaintiff in order to prevent further victimization of family members of victims of violent crimes. This letter was copied to the Deputy Commissioner of the Correctional Service of Canada as well as to the Warden of the Saskatchewan Penitentiary.

The Warden wrote the plaintiff a memorandum dated January 26, 1994, in which he indicated that his decision to restrict the plaintiff’s media access was made in consultation with the Deputy Commissioner, and endorsed by the Solicitor General. He also said that whilst the plaintiff’s relationship with Peter Worthington may be only that of a friend, Mr. Worthington’s professional status as a media personality could not be ignored and accordingly he was not prepared to revoke his decision to restrict the plaintiff’s access to the media. In his statement of claim, the plaintiff related that he had been forwarding to Peter Worthington material from his two books, Profile of a Serial Killer—The Clifford Olson Case and Inside the Mind of a Serial Killer—A Profile. Subsequently, the authorities refused to allow this material to be sent out from the penitentiary to Mr. Worthington.

In his statement of claim, the plaintiff asserted that the actions of the defendant’s servants supra infringed his rights as guaranteed by paragraphs 2(b) and 2(d) and by subsection 15(1) of the Charter. Accordingly, he asked for a declaration that he is entitled to correspond with Peter Worthington and to send to him material from his books. He also seeks the same entitlement with respect to any other media members as well as Canadian and American publishers.

The defendant did not deny that the plaintiff’s access to the media has been restricted. The defendant asserted that a correctional plan was designed for the plaintiff pursuant to regulations [Corrections and Conditional Release Regulations, SOR/92-620] enacted under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act), on March 11, 1993. The long range goal of this plan was directed at reducing the plaintiff’s public notoriety, which “directly impacted on his level of risk to the community”. Integral to this plan was the requirement that the plaintiff limit his contact with the media and other high profile contacts.

The defendant conceded that the plaintiff’s freedom of expression and freedom of association pursuant to paragraphs 2(b) and 2(d) of the Charter have been restricted. However, it is the defendant’s submission that this infringement of the plaintiff’s Charter rights is demonstrably justified in a free and democratic society by the facts of this case, and accordingly is permitted pursuant to section 1 of the Charter.[3]

III.        ISSUES

1. Has the defendant infringed the plaintiff’s rights as guaranteed by paragraphs 2(b) and 2(d) and subsection 15(1) of the Charter?

2. If so, is that infringement demonstrably justified in a free and democratic society and therefore permitted under section 1 of the Charter?

(i) Are the limits placed on the plaintiff’s rights “prescribed by law” as mandated by section 1? and

(ii) If so, do the actions taken pursuant to the prescribed law meet the requirements of the Oakes test [The Queen v. Oakes, [1986] 1 S.C.R. 103]?

IV.       ANALYSIS

As noted supra, this action is brought pursuant to subsection 24(1) of the Charter. The plaintiff has not challenged the constitutional validity of any legislative provisions. Rather, he has claimed that the defendant’s actions pursuant to certain legislative provisions have infringed his Charter rights. I agree that, in such circumstances, the proper course is to proceed under subsection 24(1).[4]

ISSUE 1: Has the defendant infringed the plaintiff’s rights as guaranteed by paragraphs 2(b) and 2(d) and subsection 15(1) of the Charter?

Pursuant to paragraph 7 of the defendant’s written submissions, the defendant conceded that the plaintiff’s freedom of expression and freedom of association under paragraphs 2(b) and 2(d) of the Charter have been restricted. However, the defendant did not concede an infringement of the plaintiff’s right to equality, as guaranteed by subsection 15(1) of the Charter.

In the recent Supreme Court of Canada decision in Egan v. Canada,[5] Mr. Justice La Forest adopted a three-step analysis, previously set out by Mr. Justice Gonthier, that applies to equality considerations under subsection 15(1):

The first step looks to whether the law has drawn a distinction between the claimant and others. The second step then questions whether the distinction results in disadvantage, and examines whether the impugned law imposes a burden, obligation or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit which it grants others (Andrews, supra) ….

The third step assesses whether the distinction is based on an irrelevant personal characteristic which is either enumerated in s. 15(1) or one analogous thereto.

Applying this tripartite test to the facts in this case, I conclude with regard to the first step of the analysis that the defendant’s actions in restricting the plaintiff’s access to the media do indeed draw a distinction between this plaintiff and other individuals. In so far as the second step of the analysis is concerned, I also conclude this step has been satisfied. The plaintiff’s group could be characterized as inmates of federal penitentiaries. The evidence clearly established that this group is subject to a number of restrictions. It seems evident that such restrictions result in a disadvantage being imposed on this group.

However, the third step of the analysis presents a problem for the plaintiff. It requires that the distinction be based on an irrelevant personal characteristic that is either enumerated in subsection 15(1) or is analogous thereto. The jurisprudence has established that differential treatment of prison inmates is not because of a personal characteristic, rather it arises from “past courses of conduct amounting to criminal activities against society”.[6] Accordingly, since the third step of the Egan analysis has not been met, it follows that the plaintiff’s claim of infringement under subsection 15(1) of the Charter must fail.

ISSUE 2: Since the defendant has conceded infringements of paragraphs 2(b) and 2(d) of the Charter, are these infringements demonstrably justified in a free and democratic society and therefore permitted under section 1 of the Charter?

(i)         Are the limits placed on the plaintiff’s rights “prescribed by law” as is mandated by section 1 of the Charter?

Pursuant to section 1 of the Charter, a person’s Charter rights may only be subjected to a reasonable limit that is prescribed by law. In the defendant’s submission a limit has the “force of law” if it is expressed or implied in a statute or regulation. The defendant relied on R. v. Therens et al.[7] and R. v. Thomsen[8] for this proposition. I agree that this jurisprudence supports that view of the matter.

The defendant submitted that the Correctional Service of Canada’s paramount consideration in the correction process is the protection of the public, as is set out in section 4 of the Corrections and Conditional Release Act, supra.[9] The defendant further submitted that this protection is achieved in part by the provision of programs in penitentiaries designed to assist the inmate’s rehabilitation and reintegration into the community as a law-abiding citizen.[10]

In further support of the defendant’s submission that the limit imposed on the plaintiff’s Charter rights is prescribed by law, the defendant submitted that pursuant to subsection 102(1) of the Regulations enacted under the Act, Correctional Service of Canada is required to develop a correctional plan for each inmate to ensure that the inmate receives the most effective program at the most appropriate time, to prepare that inmate for reintegration into the community as a law abiding citizen.[11]

The defendant further submitted that the correctional plan, dated March 11, 1993, that was designed for the plaintiff, a copy of which was received by him, indicates that the reduction of the plaintiff’s public notoriety is a goal which must be addressed since it “directly impacts on his level of risk to the community”. Essentially, the defendant submitted that reduction of the plaintiff’s public notoriety is necessary as part of his rehabilitation process. It is also required to reduce the plaintiff’s personal security risk within the prison population. As noted supra, both of these goals are mandated by the Act.

The defendant further submitted that an inmate is entitled to have reasonable contact with persons outside the penitentiary, however this is subject to reasonable limits relating to the security of the penitentiary or the safety of persons.[12] The said limits are set out in the Regulations.[13]

Accordingly, I conclude that the actions taken by the defendant with respect to the plaintiff were pursuant to a law, and thus the limit imposed on the plaintiff’s Charter rights was “prescribed by law”, as that expression is employed in section 1 of the Charter.

(ii)        Do the actions taken pursuant to the prescribed law meet the requirements of the Oakes test?

The determination of the question as to whether a limit upon a person’s Charter right constitutes a reasonable limit that is demonstrably justified in a free and democratic society requires application of the Oakes test, as was enunciated by the Supreme Court of Canada in The Queen v. Oakes.[14] I now proceed to an examination of the various components of that test as they apply to the facts in this case.

(1)       Is the legislative objective, which the measures limiting the plaintiff’s rights and freedoms are designed to serve, sufficiently pressing and substantial to justify the limitation of those rights and freedoms?

To satisfy the components of the Oakes test, the defendant relied on the evidence of Acting Deputy Warden Thomas Victor Taylor of the Saskatchewan Penitentiary as well as the evidence of Dr. Thomas Dalby, a clinical and forensic psychologist.

The evidence of Acting Deputy Warden Taylor

Prior to becoming Acting Deputy Warden, Mr. Taylor was in charge of the Special Handling Unit (SHU) at the Saskatchewan Penitentiary, from April 1, 1989, to May 1, 1995, and was responsible for its overall operation including security, programs, case management, administration and technical services. He characterized the Correctional Service’s paramount consideration as the protection of society, and testified that “this protection is achieved through the safe and secure control of offenders and by offering a program and activity base designed to release the offender into society as a law-abiding citizen”.[15] Mr. Taylor further testified that the plaintiff was transferred to the SHU for assessment on December 6, 1992, because senior officials considered him an “extreme escape risk.” The plaintiff was transferred to the Saskatchewan Penitentiary from the Kingston Penitentiary because he had made public his intention to escape custody.

On March 19, 1993, Mr. Taylor made the following comments about the plaintiff: “This inmate demonstrates an insatiable desire to have his name in the news media …. Any possibility of Olson escaping would place the public at an extreme risk to receive violence from Olson.”[16] At that time, the Assessment and Program Review Committee assigned to the plaintiff’s case made the following recommendations:

1.   OLSON should make a sustained effort to reduce his public notoriety by limiting his contacts with media and other high profile contacts within the community.

2.   A plan whereby OLSON will be able to integrate with the portion of our inmate population should be undertaken.

3.   OLSON will endeavour to remain offence free within this environment.[17]

On September 16, 1993, Mr. Taylor made a second assessment of the plaintiff. He said that the Assessment Committee meets approximately every four months for the duration of an inmate’s stay in the SHU. On this date he stated that while the plaintiff was functioning satisfactorily in the SHU “he still demonstrates and [sic] insatiable desire to receive negative attention for his past crimes”.[18]

After expressing the view that the plaintiff was still considered an “extremely high escape risk” and was still extremely dangerous, Mr. Taylor recommended that the plaintiff continue in the SHU, thus enabling him to reduce “his public notoriety so that he could successfully integrate into a maximum security institution in the future”.[19]

At trial, Mr. Taylor testified there had been an attempt to integrate the plaintiff with other offenders, however that attempt was unsuccessful because the plaintiff continued to “flaunt his special-needs status which inflames other inmates in the segregation area”.[20] The special needs referred to relates to the plaintiff’s court challenges which are “continually reported in the news”.[21] The witness added, “When it’s continually reported in the news, then they repeat his crimes and it keeps therefore in the forefront of the other inmates’ minds.”[22]

A further report of the Assessment and Program Review Committee, dated April 27, 1995, recommended that the plaintiff remain at the SHU, wherein it states:

OLSON is still viewed as an extremely high escape risk and any possible escape by him would constitute an extreme danger to society. He is also unable to integrate into either General Population or Protective Custody population at any institution. OLSON continues to ensure that he remains high profile by taking every opportunity to have his name in the media.[23]

At trial, Mr. Taylor summarized this report as follows: “[D]ue to this notoriety and his high profile, they are unable to integrate him into any population in any institution.”[24]

In a further report dated August 15, 1995, the Assessment and Program Review Committee concluded that Olson “is not able to function successfully within the general population of any maximum security facility”.[25]

Mr. Taylor also testified with respect to the first correctional plan, dated March 11, 1993, devised by the SHU for the plaintiff. The eventual goal of such a plan is the successful integration of the inmate back into society as a law-abiding citizen. The following psychiatric information is found in the correctional plan (03/11/93):

OLSON’s idea of anything that serves his purpose is correct and his showing of no remorse for the lives and families of his actions has to be addressed by himself before he can expect to be treated …. A long range goal will be for OLSON to reduce his public notoriety which directly impacts on his level of risk to the community. He should seek to limit his contacts with the media and other high profile contacts in the community to accomplish this.[26]

Attached to that plan is a report by Dr. Murray Brown, the institutional psychologist at that time. After interviewing the plaintiff on three occasions, Dr. Brown agreed with the psychiatric information within the correctional plan. He stated the following in his report:

In our interaction, the inmate took the opportunity to emphasize his association with well known names such as: Marvin [sic] Belli and agencies such as the FBI, to illustrate his sense of important [sic] and notoriety, as he did with pointing out the book he is writing which is to be titled Inside the Mind of a Serial Killer.

Consultation with Security staff indicated he is also continually mentioning the media and crime prevention agencies. He apparently performs activities that put him in the limelight. These sources also revealed he is able to manipulate events so he is the focus of attention from Security personnel.[27]

There follows on the record five progress summaries covering the period from March 12, 1993, to August 8, 1995, concerning Mr. Olson.[28] The March 12, 1993, progress summary indicated that the plaintiff’s participation in any programs had been limited because “with his incessant correspondence with media people, he keeps his past crimes in the media limelight, thus negating any contact with the offenders”.[29] At trial, Mr. Taylor testified, “As a super-protective custody status, he cannot safely associate with other offenders; therefore, he cannot attend group programming or programming that requires interaction with the other program participants, such as group A programs, sex offender programming, cognitive skills programming.”[30]

Mr. Taylor also addressed the issue of public safety concerns, which was described in the March 12, 1993, progress summary as follows: “Olson’s high degree of public notoriety exacerbates his public safety concerns. Given the psychiatric concerns outlined … public safety concerns are extremely high.”[31] Throughout all of the progress summaries from 1993 to 1995, there was no change or progress.[32] Mr. Taylor testified that the plaintiff’s institutional adjustment is still considered high[33] and at the end of the period, the plaintiff’s case management team recommended that he remain in SHU and “put more effort into addressing the [sic] his correctional plan”.[34]

Through Mr. Taylor, the defendant introduced further documentary evidence in support of the institution’s view that with a reduction of the plaintiff’s notoriety, the SHU would eventually be able to transfer the plaintiff to reduced security. This view was re-enforced by the receipt of evidence that, at the present time, other offenders would gain prestige by inflicting harm on Olson because of his high public profile.[35]

When asked about the impact of the plaintiff’s communications with the media on his correctional plan, Mr. Taylor testified as follows:

It makes it very difficult, if not impossible, to treat Mr. Olson because his energies are focused on raising his notoriety level and are not focused on addressing the issues that caused him to come to prison, so it makes the implementation of any treatment plan virtually impossible.[36]

When asked to summarize his views as to why the plaintiff’s contact with the media should continue to be restricted Mr. Taylor replied as follows:

Our mandate within the special handling unit is to lower his level of risk such that he can be successfully transferred and integrated into a maximum security institution. From there it’s to provide a program activity base to rehabilitate him to the state where he can be returned back into society as a law abiding citizen. As long as Mr. Olson is focused on raising his level of notoriety, we cannot provide the program base and opportunities that are required in order to treat him and therefore lower his risk to the safety of the public.[37]³⁷

The Evidence of Dr. Thomas Dalby

Dr. Dalby has impressive credentials.[38] For a number of years, he was an assistant professor in the Department of Psychiatry at the University of Calgary. From 1982 to 1992, he was engaged as a clinical and forensic psychologist at the Calgary General Hospital. Dr. Dalby is presently the manager of the Department of Psychology at the Calgary General Hospital and is an associate professor in the Department of Psychiatry at the University of Calgary.

The substance of Dr. Dalby’s opinion, dated December 7, 1995, reads as follows:

Pursuant to your request I have reviewed all the psychology files of Correctional Service Canada on Mr. Olson. In particular, I have studied the final psychology report, including the Psychopathy Checklist—Revised, (1992-12-01); the Department of Psychology Assessment of Sexual Behaviour Report (12-02-1992); the Correctional Service of Canada Regional Treatment Centre—Psychiatric Report of Dr. R.N. Oliver; the Psychological Assessment of Dr. Murray Brown (93-03-10); the memorandum of Dr. Fred Bellemare (3 December, 1992) and the report of Dr. S.J. Hucker (March 31, 1993). These particular documents are appended as Schedule I to this letter. I am prepared to comment on issues relevant to the above listed trial. I am also prepared to expand upon these brief comments at trial. I have appended a copy of my curriculum vitae (Schedule II) as evidence of my qualifications in providing opinion evidence.

1.   Mr. Olson has been diagnosed as suffering from a number [sic] mental disorders based on current diagnostic criteria. These are:

a) Antisocial Personality Disorder

b) Narcissistic Personality Disorder

c) Homosexual and heterosexual paedophilia and sexual sadism

d) Alcohol Abuse (by history)

2.   All of these disorders would be commonly presented by inmates in a Federal Prison save item b—Narcissistic Personality Disorder. This disorder is estimated to appear in 1% of the general population and does not have a special affinity for individuals displaying criminal behaviour. From the current version of the American Psychiatric Association Diagnostic and Statistical Manual (Fourth Edition—1994) it is noted that “the essential feature of Narcissistic Personality Disorder is a pervasive pattern of grandiosity, need for admiration and lack of empathy…”. They routinely overestimate their abilities, inflate their accomplishments and are often preoccupied with fantasies of unlimited success, power brilliance etc. They believe that they are superior, special unique and expect others to recognize them as such. They seek constant attention and admiration.

3.   A treatment issue raised is the degree to which Mr. Olson continues to accrue gratification and an increasingly inflated sense of self worth and entitlement from the fact that he murdered and sexually assaulted a number of children and teenagers.

4.   In treating Narcissistic Personality Disorder correction to grandiose fantasies or expressions is a target (ie. deflation of ego gratification). Experiences which would reinforce or magnify these aberrations would be avoided.

5.   In any inmate population a treatment target would be to have the inmate fully appreciate the negative consequences and nature of their acts and any activities which would reinforce positive consequences or gratification from their criminal conduct would be avoided.[39]

At trial, Dr. Dalby testified that the most important personality disorder suffered by the plaintiff, with respect to this matter, was Narcissistic Personality Disorder. He further testified that there are three basic principles in relation to treating a person with this disorder:

1)         Correct their grandiose self image;

2)         Encourage their ability to interact with others in order that they develop long term relationships; and

3)         Encourage them to experience real achievement to develop appropriate self-esteem, because in reality, heretofore they have achieved nothing.[40]

When the correctional plan (Ex. D-4) devised for the plaintiff was shown to Dr. Dalby for comment, he stated:

Essentially the logical thing that I see that is consistent with the treatment of this condition is the fact that the treatment plans suggest that he should discontinue, he should move away from the mirror. The mirror in this case is the media. He looks in that, he sees his name, it reflects back to him and the grandiose notions of importance and specialness, whatever. The idea here that I see is that we remove that opportunity so that he could develop a realistic view of himself, and again I think we heard earlier today the other thing is that that would allow him the opportunity for his safety to interact with other people, that would meet goal 2, that is, develop long-term relationships with people.[41]

Based on the evidence of Acting Deputy Warden Taylor and Dr. Dalby, I have no hesitation in concluding that the measures taken herein to limit the plaintiff’s rights and freedoms were clearly justified to serve pressing and substantial concerns. I found both Mr. Taylor and Dr. Dalby to be impressive and highly credible witnesses. I would add that the plaintiff adduced no evidence in contradiction of the evidence of these witnesses. I would also make the comment that in the case of each witness, their testimony was not impeached in any way in cross-examination.

(2)       Are the measures chosen to serve that objective proportional to it, i.e.:

(i)         Are those measures rationally connected to the objective?

The answer to this question is clearly in the affirmative. The evidence summarized supra establishes that restricting the plaintiff’s access to the media will reduce his personal security risk within the penitentiary. This will permit the authorities to transfer him to a reduced security environment, which is necessary for the implementation of his rehabilitation plan. Additionally, restricted media access will deprive the plaintiff of the high profile audiences he seeks for ego gratification. As the evidence establishes, this also forms part of his rehabilitation process, with respect to his Narcissistic Personality Disorder. Accordingly, in my view, the evidence summarized supra establishes that the proposed measures are rationally connected to the objective.

(ii)        Do the measures selected impair the plaintiff’s rights and freedoms as little as possible?

This question must also be answered in the affirmative. The only restriction imposed upon the plaintiff is in relation to his contact with media members. He is permitted communication with all other members of society, including family members, solicitors and friends who are not members of the media. Having regard to the uncontradicted evidence summarized supra, to the effect that reducing the plaintiff’s public notoriety will undoubtedly assist in his rehabilitation and reduce his personal security risk in the institution, I have no difficulty in concluding that the measures chosen impair the plaintiff’s rights and freedoms as little as possible. The plaintiff has only been “cut off” minimally from the outside world. In fact, he has only been “cut off" from those individuals who would, because of their contact with him, potentially increase his public notoriety, thus jeopardizing achievement of the desired objectives.

I do not wish these comments to be construed as being critical of the media persons who have been involved in contact with the plaintiff. I am certain that such contact has been on an objective and professional basis throughout.

(iii)       Are the effects of the measures taken proportional to the objective?

I agree with the defendant’s submission that the actions taken by Correctional Service Canada meet the proportionality test prima facie, since the measures taken do reduce the plaintiff’s media coverage. In practical terms, the effect of these measures may result in some inconvenience to the plaintiff in his ability to publish the two books he has written. However, he has not been restricted in his communication with persons outside the media. It has not been suggested that he is prohibited from dealing with authors and publishers. Balancing such inconvenience against the worthy objectives of the plan devised for his rehabilitation and reduction of his personal security risk, I conclude that the institution’s policy and the effects of the measures taken pursuant to that policy are clearly proportional to the objectives discussed supra.

I therefore conclude that although the actions of the defendant’s servants have infringed the plaintiff’s rights as guaranteed by paragraphs 2(b) and 2(d) of the Charter, the restrictions imposed on the plaintiff’s Charter rights are reasonable limits prescribed by law, and are therefore permissable pursuant to section 1 of the Charter.

CONCLUSION

For all of the foregoing reasons the within action is dismissed with costs.

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