T-6272-79
Frank L. Belliveau, a prisoner confined at the
prison of Dorchester, New Brunswick, Canada
(Plaintiff)
v.
The Queen in right of Canada (Defendant)
Trial Division, Collier J.—Dorchester, May 11,
12, 13 and 14; Vancouver, May 27, 1981.
Crown — Penitentiary Service — Action by plaintiff for
finding that opening of his `privileged correspondence" by
penitentiary officers was improper and for damages, and for a
declaration that the officers incorrectly calculated his release
date — Plaintiff was sentenced in June 1977, but after a new
trial was sentenced again in 1978 — New legislation changed
the provisions concerning remission — Whether his privileged
correspondence was improperly opened — Whether new legis
lation is inoperative as being contrary to Canadian Bill of
Rights — Action dismissed — Penitentiary Service Regula
tions, C.R.C. 1978, Vol. XIII, c. 1251, s. 2 — Penitentiary Act,
R.S.C. 1970, c. P-6, as amended, ss. 24(1), 24.2.
Plaintiff seeks a finding that his letters, "privileged corre
spondence", were improperly opened by penitentiary officers,
and for damages. He also seeks a declaration that the officers
incorrectly calculated his release date. The plaintiff was sen
tenced to seven years in June 1977. After a second trial, he was
sentenced to six years in June 1978. A Commissioner's Direc
tive in effect at that time defined privileged correspondence as
"properly identified and addressed items directed to and
received from" certain persons. The plaintiff tendered in evi
dence mail which he swore was privileged correspondence, but
which was given to him opened. The defendant admits that
staff had mistakenly opened a few privileged letters, but alleges
that plaintiff exaggerated the number of letters improperly
opened and disputes the plaintiffs classification of many of the
letters. Under legislation existing when the plaintiff was sen
tenced, he was entitled to automatic statutory remission of
one-quarter of his sentence subject to forfeiture, and earned
remission of three days per month. Subsequent legislation
abolished statutory remission and provided for 15 days earned
remission per month. Section 24.2 provides that the right to
earn 15 days per month remission ceases when the former
statutory and earned remission equals one-third of the inmate's
sentence. The plaintiff relying on the Canadian Bill of Rights
argued that section 24.2 of the Act should be declared inopera
tive for limiting his right to freedom and creating inequality
among inmates. He also contended the penitentiary authorities
ought to have credited him with earned remission during the
time he was in custody between his first and second convictions.
Held, the action is dismissed. The staff took reasonable care
to try and determine which correspondence was privileged and
which was not, but human mistakes did occur. They were
relatively few. There was, as well, no evidence of deliberate
opening of privileged mail addressed to the plaintiff. Nor was
there evidence of recklessness. There has been no evidence to
support an actionable breach. The Commissioner's directives
have been held by the Supreme Court not to be "law" at least
for the purposes of sections 28 and 18 of the Federal Court Act.
There are no grounds for declaring section 24.2 of the Peniten
tiary Act inoperative. Parliament has the power to limit the
amount of remission an inmate may be entitled to or credited
with. There is no provision in the legislation which requires
time spent in custody be subject to the earned remission
provisions.
Martineau v. The Matsqui Institution Inmate Disciplinary
Board [1978] 1 S.C.R. 118, referred to. Martineau v.
Matsqui Institution Disciplinary Board [1980] 1 S.C.R.
602, referred to. Prata v. Minister of Manpower and
Immigration [1976] 1 S.C.R. 376, referred to.
ACTION.
COUNSEL:
Plaintiff in person.
Martin C. Ward for defendant.
SOLICITORS:
Plaintiff in person.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff is presently an inmate
of Dorchester Institution. He is serving a six-year
sentence. In this action he seeks two things:
(a) a finding that a large number of letters to
him, said to be "privileged correspondence"
were improperly opened by penitentiary officers
at Springhill and Dorchester Institutions; and,
for that, damages of $500,000;
(b) a declaration that the penitentiary officers
have incorrectly calculated his release date.
On May 27, 1977 the plaintiff was convicted, by
a judge and jury in Nova Scotia, of rape. He was
sentenced to seven years imprisonment at Dorches-
ter. A one year sentence, on an allied conviction,
was ordered to be served concurrently.
The plaintiff started serving his sentence in the
early part of June 1977 at the Springhill Institu
tion. In early March of 1978, he was transferred to
the Dorchester Institution. He had appealed his
conviction. On April 4, 1978, the Appeal Division
of the Nova Scotia Supreme Court ordered a new
trial. At some later date, he was removed from
Dorchester to a provincial institution while he
awaited his new trial. On June 1, 1978, after a
second trial before a judge and jury, he was again
convicted of the charge of rape. He was sentenced,
this time, to six years in Dorchester. He has been
in that institution since.
I go first to the matter of alleged improper
opening of privileged correspondence addressed to
the plaintiff, and received by him at either Spring-
hill or Dorchester.
The following are the relevant portions of Com
missioner's Directive No. 219, as amended, in
effect from September 26, 1974, until September
30, 1980, dealing with correspondence to and from
inmates:
5. ...
d. Subject to the provisions of paragraph 8, every item of
correspondence to or from an inmate may be opened by
institutional authorities for inspection for contraband.
8. PRIVILEGED CORRESPONDENCE
a. "Privileged correspondence" is defined as properly identi
fied and addressed items directed to and received from any
of the following:
(I) Members of the Senate
(2) Members of the House of Commons
(3) Members of provincial legislatures
(4) Members of legislative councils for Yukon and North
west Territories
(5) The Solicitor General
(6) The Commissioner of Corrections
(7) The Chairman of the National Parole Board
(8) The Federal Correctional Investigator
(9) Provincial Ombudsmen (see Annex "A")
(10) Commissioner of Official Languages
(11) Canadian Human Rights Commissioner
(12) Privacy Commissioner
b. Privileged correspondence shall be forwarded to the
addressee unopened.
c. In exceptional cases where institutional staff suspect con
traband in such privileged correspondence, the Commis
sioner's approval shall be obtained before it is opened.
The practice at both institutions from 1977 to
date was, and is, to open so-called ordinary mail,
or general correspondence. Except where censor
ship of an inmate's mail had been ordered, the
contents were not read by prison staff. The object
of opening was to search for contraband. That
term is somewhat vague. It is defined in section 2
of the Penitentiary Service Regulations, C.R.C.
1978, Vol. XIII, c. 1251 as follows:
"contraband" means anything that an inmate is not permitted
to have in his possession;
Obviously it embraces weapons, materials that
might be used as a weapon, or for purposes of
escape, and drugs. According to one defence wit
ness it covered, in his view, anything, including
money, other than correspondence, clippings and
photographs.
One of the difficult expressions in this directive
is in paragraph 8a: " `Privileged correspondence'
is ... properly identified and addressed items .. .
received from ..." [my underlining].
A new Commissioner's Directive No. 219, of
September 30, 1980, replaced the former one.
There was a significant change in the definition of
"privileged correspondence". The expression
" properly identified" disappeared. Privileged cor
respondence is now defined as follows:
5. "Privileged Correspondence" is correspondence between an
inmate and an official holding a position of public office
which is listed in Annex "A".
I set out Annex A:
PRIVILEGED CORRESPONDENCE
The following is a list of authorized privileged correspondents:
SECTION I
MINISTRY PRIVILEGED CORRESPONDENTS
1. Solicitor General *
2. Deputy Solicitor General *
3. Commissioner of Corrections *
4. Correctional Investigator
5. Chairman of the National Parole Board
6. Inspector General
SECTION II
GENERAL PRIVILEGED CORRESPONDENTS
1. Chief Commissioner of the Canadian Human Rights
Commission
2. Commissioner of Official Languages
3. Members of the House of Commons
4. Members of the Legislative Council for the Yukon and the
Northwest Territories
5. Members of the Provincial Legislatures
6. Members of the Senate
7. Privacy Commissioner
8. Judges, Magistrates of Canadian courts
9. Provincial Ombudsmen
* Where these officials have specifically delegated an officer or
officers to sign correspondence to inmates in their name,
such correspondence shall be treated as "privileged".
There was a change in respect of the opening of
general, or ordinary, correspondence:
Inspection
18. General correspondence addressed to inmates shall, on
occasion, be examined in order to prevent the transmission of
contraband. Such correspondence may be opened and the con
tents checked (without reading). The checking shall be done in
the presence of two staff members. [My underlining.]
The treatment of privileged correspondence is
now as follows:
Privileged Correspondence
30. Inmates wishing to write to authorized privileged corre
spondents shall be provided with writing paper and stamped
envelopes marked "Privileged Correspondence".
31. Privileged correspondence shall be forwarded unopened to
the addressees.
32. Should privileged correspondence be opened in error, the
Visits and Correspondence Officer shall immediately provide
the inmate concerned with an oral explanation. This explana
tion shall be confirmed to the inmate, in writing, within one
working day.
33. Privileged correspondence shall be exempt from the stand
ard procedures for inspection for contraband. If there is suspi
cion of abuse of privileged correspondence, the Director may
authorize, in writing, such inspection. The inmate concerned
shall witness the opening of the particular privileged
correspondence.
34. Privileged correspondence shall be exempt from any form of
censorship.
35. Inmates shall not routinely use privileged correspondence in
lieu of the grievance procedure. They shall be advised of the
proper procedures for presenting complaints, inquiries and
grievances.
The plaintiff tendered in evidence more than
140 pieces of mail which he swore were privileged
correspondence, but had been given to him opened.
The defendant, in paragraph 5 of the defence,
admitted:
... the Plaintiff's privileged mail from Members of Parliament
or Members of the Provincial Legislative Assembly was opened
erroneously ....
At trial, the defendant's contention ran as fol
lows: the plaintiff had exaggerated the number of
privileged letters that had been opened; many had
not, in fact been opened; many of the plaintiff's
exhibits could not be classed as privileged corre
spondence; the relatively few privileged letters,
which had been opened, were the result of bona
fide mistakes; the plaintiff had suffered no pecuni
ary or economic loss; no case for general damages
had been made out.
The plaintiff put in evidence approximately 47
pieces of correspondence, said by him to be privi
leged, delivered to him at Springhill. These, he
said, were delivered to him open.
John F. Spence has been Supervisor of Visits
and Correspondence at that institution since Janu-
ary 1969. The plaintiff was obviously a prolific
correspondent. He received, by his own admission,
a great deal of correspondence, not only from
privileged correspondents, but from others.
At Springhill, incoming mail to inmates was
sorted into alphabetical order. Mail, which the
officers considered properly identified as privi
leged, was set aside. It was not opened. The re
maining mail was opened and checked for contra
band. Mail which was opened was punched with
specially designed punches. This was to identify it
as having come through ordinary channels. Privi
leged mail was not punched. A log book of privi
leged mail was kept. The name of the inmate
addressee, and the sender was recorded.
Of the approximately 47 pieces complained of,
25 of them can, in my view, be reasonably identi
fied in the log book of privileged mail. The evi
dence of Mr. Spence was that any mail so recorded
was delivered unopened and unpunched. I accept
that testimony. I do not accept the plaintiff's
hypothesis that someone other than the Visits and
Correspondence Officers must have, or could have,
opened the letters the plaintiff complains of. The
Springhill log book (Ex. 171) contradicts the
plaintiff's sworn testimony. It makes all his tes
timony dubious.
Some of the letters, of which the plaintiff com
plained, bore a round punch mark. Mr. Spence
testified Springhill never used a round punch, but
did use punches of various designs, such as hearts,
or clubs, or other variations. The plaintiff admit
ted, during the trial, he had, at one time, in his
own possession, a small punch for puncturing
leather. I find the round punch mark was put on a
number of the exhibits by the plaintiff in an
attempt to show, falsely, correspondence had been
opened and punched by penitentiary officers.
Of the roughly 20 other items complained of,
there were only the letters, not the envelopes. The
plaintiff testified the envelopes, at some stage,
disappeared. He agreed he could well have, rou
tinely, disposed of some of them. Several of those
letters, even on a liberal interpretation of the
Commissioner's directive in force during 1977 and
early 1978, could not be classed as privileged
correspondence. There were, for example, two let
ters from Revenue Canada dealing with income
tax matters. There were other examples as well.
I am satisfied, on the evidence, that relatively
few truly privileged letters, addressed to the plain
tiff, were mistakenly opened by the staff at Spring-
hill. But, as conceded by the defence, some were
opened in error.
In my view, having regard to all the circum
stances, there was no lack of reasonable care by
the Springhill staff in the handling of privileged
correspondence addressed to the plaintiff. There
were over 300 inmates in the institution. There
was a large volume of mail. One can understand
that bona fide mistakes could be made in identify
ing, or misidentifying, truly privileged mail.
I turn to the letters, complained of by the plain
tiff, received by him at Dorchester.
There were approximately 97 pieces of corre
spondence.
Dorchester Institution, unfortunately, did not
have, until August, 1979, a log book system simi
lar to Springhill. From that time on, as with
Springhill, the name of the inmate addressee was
recorded, as well as the privileged correspondor.
Dorchester went one step further. Prisoners were
asked to initial the log v book, as a- receipt for the
mail.
Approximately 65 of the letters complained of
by the plaintiff were received before the recording
system was brought in. Of that 65, the plaintiff
was not able to produce the envelopes for
approximately 40.
The Visits and Correspondence Officers at Dor-
chester appear to have adopted a stricter construc
tion of the Commissioner's directives, than at
Springhill. For example, they did not consider an
envelope identified on the outside as emanating
from the office of the Prime Minister of Canada as
privileged mail. Some of the officers took the view
that, for proper identification, the name of the
member of parliament, and his franking mark,
must be on the envelope. There were other quite
strict constructions.
In any event, it is reasonably arguable on behalf
of the defence, that a number of the 65 letters
complained of, received before the recording
system was set up, could reasonably be regarded as
not privileged.
I am also convinced some of truly privileged,
and indeed some of arguably privileged, mail was
delivered to the plaintiff unopened.
I come to that conclusion because of the evi
dence from Springhill which indicates letters,
alleged by the plaintiff to have been opened, were
in fact delivered unopened. The same facts can be
demonstrated from the Dorchester records, once
the log book system was initiated. Of approximate
ly 32 letters complained of after the log book
system was introduced, 17 appear in the books
(Exs. 17 A, B, C and D) as privileged. In many
cases the plaintiff's initials appear beside the
entry.
Of the approximately 15 letters remaining, 10 of
them, on a strict construction of the Commission
er's directive then in effect, could reasonably be
said to be not privileged.
My conclusion, in respect of Dorchester, is the
same as that in respect of Springhill. The staff, in
my view, took reasonable care to try and deter
mine which correspondence was privileged, and
which was not. But human mistakes did occur.
There were relatively few.
The plaintiff made an impassioned attack on the
opening of letters sent from Buckingham Palace by
representatives of the Queen to himself and
another inmate. I cannot fault the staff at Dor-
chester for treating those envelopes as not coming
within the Commissioner's latest directive. It may
be the Commissioner should consider adding some
thing in the directive to cover that particular kind
of mail.
The plaintiff in this case drew his own plead-
ings, and presented his own case. The basis of his
cause of action for damages in respect of the
opening of mail, which should not have been
opened, is not really stated. That is understand
able. He has no legal training.
If one views the basis of his claim as negligence,
then, in my opinion, negligence, in law, has not
been established. Negligence law does not require
perfection to avoid liability. All that can be
demanded of a prison staff, entrusted with inter
preting the directive and scrutinizing the mail, is
to take reasonable care. That, I find, they did.
I find, as well, no evidence of deliberate or
intentional opening of privileged mail addressed to
the plaintiff. Nor was there any evidence of
recklessness.
If the plaintiff's claim is founded on some viola
tion of a right, akin to that of breach of a statutory
duty, then I find there has been no evidence to
support an actionable breach. It is questionable
whether the Commissioner's directives, providing
that privileged mail shall be delivered unopened,
can support a cause of action if those administra
tive orders have been breached. I express no final
opinion. Commissioner's directives have been held
not to be "law", (in the sense that the Penitentiary
Service Regulations are), at least for purposes of
sections 28 and 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10.'
Even if a breach of the directive in respect of
privileged mail can support the plaintiff's cause of
action, I find there has been, here, no breach
meriting compensation in damages. The breaches
were relatively few. They were bona fide errors.
I express no view as to what different result
there might be if privileged mail is opened sys
tematically, either on an intentional or reckless
basis.
But I shall not leave this aspect of the plaintiffs
claim, in respect of privileged correspondence,
without some last comment.
I can understand some of the reasons for
inmates' complaints in respect of the opening of
privileged mail. They may, perhaps, be some of the
reasons for the bringing of this action. The Com
missioner's earlier directive created confusion in
the minds of staff and inmates as to what exactly
was privileged correspondence. Most of the dif
ficulty arose from the words previously referred to:
"properly identified". I have already referred to
Mr. Spence, from Springhill. Another witness, Mr.
David Chitty, was Supervisor of Visits and Corre
spondence, at Dorchester, from November 20,
1978 to December 23, 1980. Both Spence and
Chitty were, in my opinion, fair and candid wit
nesses. Both agreed the former directive was con
fusing and difficult to interpret.
1 See Martineau v. The Matsqui Institution Inmate Discipli
nary Board [1978],1 S.C.R. 118 (per Pigeon J. at page 129)
and Martineau v. Matsqui Institution Disciplinary Board
[1980] 1 S.C.R. 602 (per Dickson J. at page 609 and pages
613-614 and Pigeon J. at pages 631-632).
As I have earlier indicated the Visits and Corre
spondence staff at Springhill gave a somewhat
more liberal interpretation to "properly identified"
than did their counterparts at Dorchester. But the
evidence discloses that, even at Springhill, some
times one letter would be considered by one officer
as privileged and delivered unopened, and yet
another letter from the same correspondent would,
and arguably so, be considered by another officer
as not privileged.
There was, therefore, uncertainty among staff
dealing with mail. There was, as a result, confu
sion, uncertainty and irritation in the minds of
inmates because of the inconsistency I have
described.
At Dorchester, as I have said, a more strict
interpretation was adopted. Mr. Spence candidly
agreed that some of the letters, considered by
Dorchester as not privileged, would have been
considered by him and his staff at Springhill as
privileged. Mr. Chitty agreed some of the exhibits,
treated as privileged at Springhill, would have
probably had different treatment at Dorchester.
He also agreed there was even inconsistency
among himself and the four officers under him at
Dorchester.
One can understand the irritation of an inmate,
such as the plaintiff, to find that mail considered
privileged at Springhill was being opened at Dor-
chester. But one, of course, has to keep in mind the
background of an inmate's existence in an institu
tion: monotony, hostility, the potential for violence,
the distrust of staff and even of fellow inmates, in
a confined explosive atmosphere.
Both Spence and Chitty agreed the Commis
sioner's latest directive is, as to what mail is
privileged, clearer than the earlier one. They also
agreed there has been, in the last year or two, a
more liberal view taken. But they also feel there is
still uncertainty and inconsistency in respect of
privileged mail; this creates confusion and difficul
ty among staff and inmates. The evidence supports
their opinions.
I turn now to the second claim of the plaintiff in
this action: a declaration that the penitentiary
officials have inaccurately calculated his release
date.
There are two points here. The plaintiff attacks
section 24.2 of the Penitentiary Act 2 as preventing
him from earning any remission on his sentence
after approximately July 1 of 1979.
The plaintiffs present six-year sentence was
imposed before certain amendments made to the
Penitentiary Act came into effect on July 1, 1978.
I shall refer to the pre-July 1 provisions, regarding
remission of sentence, as the "old Act" and the
post-July 1 provisions, in respect of remission of
sentence, as the "new Act".
Under the old Act, the plaintiff, on entering a
penitentiary was automatically credited with
"statutory remission" of one-quarter of his sen
tence. That statutory remission was subject, in
certain circumstances, to forfeiture. (See section
22 of the old Act.) He was also entitled to be
credited with "earned remission" of three days per
month. (See old subsection 24(1)).
Under the new Act, statutory remission was
done away with. The provision giving an inmate
three days earned remission per month was
repealed. In its place, an inmate may be credited
with 15 days of earned remission in respect of each
month of his sentence (see the present subsection
24(1)).
In the case of those inmates who had been
sentenced prior to July 1, 1978 and credited with
statutory remission, the provisions of new section
24.2 applied. I set it out:
24.2 An inmate who has been credited with statutory remis
sion is not entitled to earned remission pursuant to subsection
24(1) beyond the date when the aggregate of
(a) the maximum number of days of statutory remission with
which he was at any time credited under this Act and under
the Prisons and Reformatories Act in respect of the term he
is then serving,
2 R.S.C. 1970, c. P-6, as amended by the Criminal Law
Amendment Act, 1977, S.C. 1976-77, c. 53, s. 41.
(b) the number of days of any earned remission standing to
his credit that accrued before the coming into force of this
section, and
(c) the maximum number of days of earned remission with
which he was at any time credited pursuant to subsection
24(1)
equals one-third of the sentence he is then serving.
As I understand that section, the right to earn
15 days per month remission ceases on the date
when the former statutory remission and any
former earned remission add up to one-third of the
inmate's sentence.
In this case the plaintiffs right, to earn 15 days
remission for each month served, terminated
approximately July 1, 1979.
The plaintiff argues the provisions of section
24.2 are in conflict with the provisions of subsec
tion 24(1); section 24.2 should be declared inoper
ative because: (a) it limits his right to earlier
freedom from confinement and, (b) it creates in
equality, among inmates, before the law. For con
tentions (a) and (b) the plaintiff relies on the
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C.
1970, Appendix III].
There are, in my view, no grounds for declaring
section 24.2 inoperative. Parliament has, as I see
it, the power to limit the amount of remission an
inmate may be entitled to or credited with. The
Supreme Court of Canada 3 has said:
... the Canadian Bill of Rights does not require that all federal
statutes must apply to all individuals in the same manner.
Legislation dealing with a particular class of people is valid if it
is enacted for the purpose of achieving a valid federal
objective ....
I substitute, in that quotation, for the words
"individuals" and "people", the words "inmates"
or "inmate".
I have some sympathy for the plaintiff. Parlia
ment has, for some reason, seen fit to make a
distinction between inmates, sentenced prior to
July 1, 1978 and entitled to statutory remission,
and those sentenced after July 1, 1978 who may be
credited with earned remission. I shall not specu
late on the reason. In the case of the inmate
sentenced prior to July 1, 1978, he can reduce his
sentence by, at the most, one-third. In the case of
3 Prata v. Minister of Manpower and Immigration [1976] 1
S.C.R. 376 at 382.
an inmate sentenced after July 1, 1978, he can
reduce his sentence, possibly, by one-half.
There is, to my mind, another distinction be
tween the two classes of inmates.
Under the old Act, an inmate convicted of a
disciplinary offence could forfeit, in whole or in
part, the statutory remission to his credit (see
subsection 22(3)). But he could, under the old Act,
earn three days remission per calendar month (see
former subsection 24(1)). In that way he could, in
a fashion, recover some remission which had been
forfeited.
As I interpret the new Act, the plaintiff, if he
should forfeit earned remission as a result of being
convicted of a disciplinary offence, is prevented
from earning any further remission after July 1,
1979. He is thus, in effect, prevented from replac
ing the whole or any part of forfeited remission.
But an inmate sentenced under the new Act
does not run into this impediment.
The plaintiff also contends the penitentiary
authorities ought to have credited him with earned
remission during the time he was in custody from
his first conviction in June of 1977 to his second
conviction in June of 1978.
Once more, I sympathize with the plaintiff. But
there is no provision in the legislation which
requires time spent in custody be subject to the
earned remission provisions.
Until the first conviction was set aside in April
of 1978, the plaintiff was serving a seven-year
sentence along with a one-year concurrent sen
tence. There is no legislative authority for credit
ing to him any remission he might have earned
during that period, when he was convicted, once
more for the same offence, and a new sentence
imposed. The statute is silent.
In the plaintiff's case, the new sentence was six
years. The first sentence had been seven years. It
may be the second judge, in imposing the plain
tiff's present sentence, took into consideration the
year spent in custody. It also may be the judge
gave that fact no consideration. There - was no
satisfactory evidence before me.
Parliament might well consider amending legis
lation to cover situations of this kind, particularly
if the sentence on a second conviction were, for
example, greater than the first sentence imposed.
All that is, however, a matter for Parliament to
consider; not for the courts. The legislation is, as I
have said, at the moment, silent on the point.
In the end result of this case, the plaintiff's
action is dismissed. There will be no order as to
costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.