T-1822-85
Ivan William Mervin Henry (Plaintiff)
v.
Commissioner of Penitentiaries (Defendant)
INDEXED AS: HENRY V. CANADA (COMMISSIONER OF
PENITENTIARIES)
Trial Division, Strayer J.—Prince Albert, March
16; Ottawa, April 2, 1987.
Constitutional law — Charter of Rights — Life, liberty and
security — Application for mandamus to compel release of
money in inmate's savings account for payment of litigation
expenses — Regulations governing payment out of Inmate
Trust Fund, Directive prescribing minimum balance to be
maintained and Standing Order stipulating reasons for with
drawals, cast so broadly as to prevent access by inmates to
savings which may be needed for litigation to protect liberty
and security — Application allowed — Charter, s. 7 infringed
— Not justifiable under s. 1 as doubtful directives and stand
ing orders "law" — Although Regulations "law", not "reason-
able limit" — Unreasonable to limit access to courts by such
vague criteria as whether litigation assisting "reformation and
rehabilitation" of inmate — 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. 1, 7, 8, 9, 11(d), 12,
15(1), 24 — Penitentiary Service Regulations, C.R.C., c. 1251,
s. 32 (as am. by SOR/83-562, s. 1) — Penitentiary Act, R.S.C.
1970, c. P-6, s. 29.
Penitentiaries — Application for mandamus to compel
defendant to release funds in inmate's savings account to pay
litigation expenses — Request for funds refused because of
minimum balance requirements — Application allowed —
Charter, s. 7 infringed — Regulations, directives and standing
orders so broad as to prevent access to savings needed for
litigation to protect "liberty and security of person" — Not
demonstrating "reasonable limits prescribed by law" as jus
tifiable excuse under Charter, s. 1 — Directives and standing
orders not law — Regulations not "reasonable limit" as
criteria too vague — Penitentiary Act, R.S.C. 1970, c. P-6, s.
29 — Penitentiary Service Regulations, C.R.C., c. 1251, s. 32
(as am. by SOR/83-562, s. 1) — Canadian Charter of Rights
and Freedoms, being Part 1 of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 7, 8, 9,
11(d), 12, 15(1), 24.
This is an application for mandamus to compel the defendant
to release money in an inmate's savings account for payment of
litigation expenses. The defendant refused to release the plain-
tiff's funds as he had less than the minimum required for
conditional release and he would be eligible for parole in two
years. The plaintiff alleged that this is contrary to several
Charter provisions. The defendant countered that the Regula
tions, Commissioner's Directive and Standing Order, providing
for the withholding of a minimum amount so that such funds
would be available to him upon his release was a reasonable
limitation, justifiable under the Charter, section 1.
Held, the application should be allowed. Mandamus to issue
to require the Commissioner to release the funds subject only to
any reasonable method of verification that the funds are being
spent for the purposes of litigation.
The plaintiff has demonstrated that the restrictions on
inmates' access to their funds for use in litigation constitute an
infringement of rights under section 7 of the Charter. Subsec
tion 32(2) of the Regulations governing payment out of the
Inmate Trust Fund, sections 8 and 10 of the directives prescrib
ing the minimum balance to be maintained and giving the
Deputy Commissioner the power to establish conditions govern
ing withdrawals from inmates' savings accounts, and sections
12 and 13 of the Standing Order stipulating the reasons for
withdrawals from savings are cast so broadly as to prevent
access by inmates to their savings which they may need in
seeking to protect through litigation their "liberty and security
of the person". The requirement that a minimum balance be
maintained restricts an inmate's ability to pursue his legal
remedies.
The respondent failed to meet the onus of justifying the
limitation. In particular the Commissioner's Directive and
Standing Order may not be "limits prescribed by law" as
required by the Charter, section 1. The Supreme Court of
Canada held that a Commissioner's directive is not law in
another context. Standing orders appear to be of the same
nature. Such directives and orders are not laws, conferring on
or denying rights to inmates, because they are for the internal
management of the Corrections Service. Although subsection
32(2) of the Regulations is law, it was not justified as a
"reasonable limit". It is unreasonable to leave to an authorized
correctional officer the discretion to decide whether litigation
by an inmate will assist in his "reformation and rehabilitation".
Access to the courts should not depend on such vague criteria.
Some limit on withdrawals from inmates' savings accounts for
the purposes of legal proceedings, depending on the nature of
those proceedings may be justifiable if properly prescribed by
law. What is under attack here is a general limitation on those
withdrawals which could affect any kind of litigation. Although
the applicant may or may not be asserting rights to liberty and
security, he is met with general rules which limit his access to
funds for any litigation.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board, [1978] 1 S.C.R. 118; Ibrahim v. Canada
(Disciplinary Tribunal), order dated November 4, 1985,
Federal Court, Trial Division, T-1325-85, not yet report
ed; Bovair v. Regional Transfer Board (1986), 2 F.T.R.
185 (F.C.T.D.); R. v. Institutional Head of Beaver Creek
Correctional Camp, [1969] 1 O.R. 373 (C.A.).
APPEARANCE:
Ivan William Mervin Henry on his own
behalf.
COUNSEL:
Martel Popescul agent for defendant.
PLAINTIFF ON HIS OWN BEHALF:
Ivan William Mervin Henry, Prince Albert,
Saskatchewan.
SOLICITOR:
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
STRAYER J.: This proceeding was commenced
by a statement of claim in which the plaintiff
(applicant) sought certiorari, mandamus, and an
interlocutory injunction to require the defendant
(respondent) to release to him any or all money in
his savings account at the Saskatchewan Peniten
tiary for use by the plaintiff (applicant) for paying
expenses in connection with various legal proceed
ings initiated by him. He also requested generally
such remedies as might be available under subsec
tion 24(1) of the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]. Subsequently he filed a notice
of motion in the same proceedings seeking an
injunction for the same purpose and again asking
for any appropriate remedy under subsection 24(1)
of the Charter. At the hearing of this motion it
was agreed that I should treat this application as a
request for mandamus and that my determination
on this application of the legal issues involved as to
the authority of the respondent to withhold such
monies would be determinative of the action itself
as this was the only relief being sought by the
applicant.
The applicant is an inmate at the Saskatchewan
Penitentiary, serving an indeterminate sentence as
a dangerous offender. He has initiated several
proceedings in this Court apart from this one:
these include, according to his own description,
action T-995-85 [order dated July 15, 1987, not
yet reported] which involves an attempt to obtain
judicial review of a decision of the Minister of
Justice with respect to an application by him for
exercise of the prerogative of mercy; action
T-1846-86, involving a claim by him against the
RCMP with respect to clothes and other items
seized at the time of his arrest; action T-2013-86
against the Solicitor General and the National
Parole Board, having to do with obtaining court
transcripts; and T-1529-85, an action which I have
since tried involving the opening by penitentiary
staff of correspondence received by him while in
the institution.
On May 28, 1985 the applicant, having been
unable to obtain from penitentiary officers the full
use of his savings account at the prison for his
legal proceedings, applied to the Commissioner of
Penitentiaries for release of these funds. On July 5,
1985 the Commissioner wrote to him as follows:
1 refer to your letter of May 28, 1985, concerning your request
for a release of funds from your Savings Account.
I understand that you are presently serving an indeterminate
sentence as a dangerous offender and that your are therefore
eligible for parole in two years.
On June 19, 1985, you had $19.65 in your Current Account
and $207.34 in your Savings Account. Because you do not have
the minimum $350. balance in your Savings Account, an
amount considered essential if you are conditionally released, I
regret that your request for funds from your Savings Account
cannot be granted at this time.
The applicant says that this denial of access to
the total balance in his account for his use in legal
proceedings is contrary to sections 7, 8, 9, 11(d),
12 and 15(1) of the Charter. Counsel for the
respondent argued that the applicant had not
shown on the evidence any infringement of any of
these Charter rights. In the alternative he argued
that the Penitentiary Service Regulations [C.R.C.,
c. 1251], the Commissioner's Directive issued by
the Commissioner of Penitentiaries, and the rele
vant Standing Order applicable to this institution
provided for the withholding from any inmate of a
certain minimum amount in his savings account so
that such funds would be available to him upon his
release. Counsel contended that this was a reason
able limitation on any Charter right that might be
considered infringed, justifiable under section 1 of
the Charter. He further pointed out that the cur
rent directive and standing orders provide for a
minimum balance of only $80 to be retained in the
savings account, in place of the prescribed mini
mum of $350 applicable at the time this inmate
applied in May, 1985. I raised with the plaintiff-
applicant the question of whether, given the new
minimum, and given the fact (which he did not
contest) that he now has a balance of $441.15 in
his savings account, this would not make it possi
ble for him to withdraw a sufficient amount so
that this application need not be proceeded with.
The applicant wished to proceed, however, in order
to have a decision of this Court determining that
any limitation on access to these funds, when
needed for legal proceedings, is contrary to the
Charter.
The Penitentiary Act, R.S.C. 1970, c. P-6, sec
tion 29 authorizes the Governor in Council to
make regulations, inter alia, for the custody and
discipline of inmates and for carrying into effect
the provisions of that Act. This section also con
templates that subject to the Act and the regula
tions, the Commissioner may make directives
29....
(3) ... for the custody, treatment, training, employment
and discipline of inmates and the good government of
penitentiaries.
The more general Commissioner's Directive
600-6-06.1 of October 31, 1983 categorizes
inmates with respect to certain matters concerning
their savings account. Section 24 of that directive
deals with those who have more than five years to
serve before being eligible for full parole and
section 27 deals with those who have less than five
years to serve. It originally permitted inmates to
withdraw only that amount exceeding $350 in
their savings account, although it provided for
exceptions to that general rule, permitting expen
ditures for certain purposes that might reduce the
account to as little as $100. Those exceptions did
not apply to the present situation.
Section 32 of the Penitentiary Service Regula
tions, C.R.C., c. 1251, as amended in July, 1983
[SOR/83-562, s. 1] provides in part as follows:
32....
(2) No moneys in the Inmate Trust Fund that stand to the
credit of an inmate shall be paid out unless
(a) the inmate gives a direction in writing authorizing the
payment, and
(b) the institutional head or other authorized officer certifies
that, in his opinion, the payment is calculated to assist in the
reformation and rehabilitation of the inmate.
(2.1) No moneys standing to the credit of an inmate of a
class prescribed by directive in that inmate's savings account in
the Inmate Trust Fund shall be paid out of that account if the
balance of such account is less than an amount prescribed by
directive.
(2.2) Notwithstanding subsection (2.1), moneys standing to
the credit of an inmate of a class prescribed by directive in that
inmate's savings account may, with the inmate's authorization
in writing, be paid out of that account for a purpose prescribed
by directive.
A further directive dated October 1, 1986, pro
vided in section 8 thereof that inmates had to
maintain a minimum balance of $80 in their sav
ings account. Section 10 thereof provides that the
Deputy Commissioner of the region shall establish
for that region conditions governing withdrawals
from inmates' savings accounts. Standing Order
860, of the kind apparently contemplated by sec
tion 10 of the directive, relevant to this institution,
was issued on February 16, 1987. It provides in
part as follows:
12. Withdrawals from savings may be made for the following:
— payment of income tax;
— payment of insurance premiums;
— payment of legal fees;
— payment of court fees and/or fines imposed by a court;
— payment of outside loans from chartered banks, trust
companies or credit unions;
— purchase of Canada or Provincial Savings Bonds;
— obtainment of certificates and licenses (trades and/or
birth);
— payment of day parole and temporary absence expenses;
— payment of approved educational courses and related
costs; and
— family assistance where need has been validated. In the
case of family assistance Case Management Officers
shall be expected to use reasonable judgment and their
knowledge of the inmate in evaluating the existence of
need. Where necessary, a community assessment may be
sought to substantiate need.
13. Notwithstanding the above, an inmate must retain a mini
mum balance of eighty dollars ($80.00) in his savings
account. Withdrawals from savings shall only be permitted
on that amount exceeding eighty dollars ($80.00). There
shall be no exceptions to this rule.
I understand it to be the wish of the parties that I
should decide this matter on the basis of the
present law, directives, and standing orders in
order that the applicant's present entitlement to
his funds may be determined. I take it that the
Directive of October 1, 1986, and sections 12 and
13 of Standing Order 860 made under it, are the
currently operative provisions.
As noted, the applicant claims that several
Charter rights have been infringed. I am very
doubtful about the relevance of most of the Chart
er sections to which he refers. I am satisfied,
however, that he has demonstrated that these re
strictions on inmates' access to their funds for use
in litigation constitute an infringement of rights
under section 7 of the Charter. Subsection 32(2) of
the Regulations (quoted above), sections 8 and 10
of the October 1, 1986 Directive and sections 12
and 13 of the latest Standing Order (as well as
their predecessor orders and directives) are cast so
broadly as to prevent access by inmates to their
financial resources which they may need in seeking
to protect through litigation their "liberty and
security of the person" as referred to in section 7.
It appears to me that the Commissioner's Directive
and in particular the Standing Order, although it
makes provision for withdrawals from the savings
account of an inmate for "payment of legal fees"
and "payment of court fees" nevertheless imposes
the requirement that a minimum balance of $80 be
retained in the account and thus restricts the
ability of an inmate to pursue his legal remedies.
Although such a restriction would seem of limited
importance to most litigants, it may be quite
important to an inmate for whom $80 may repre
sent a substantial percentage of his available
resources.
Nor am I satisfied that all these restrictions are
justified within the meaning of section 1 of the
Charter. Counsel for the respondent presented
very little argument, and no evidence, to support a
section 1 justification. Once a prima fade
infringement of a Charter right has been found,
the onus shifts to the party invoking section 1 to
justify the "limitation". This onus was not met. In
particular, I am not satisfied that the Commission
er's Directive and the Standing Order are "limits
prescribed by law" as required in section 1. It was
held by four judges of the Supreme Court in
another context that a Commissioner's Directive is
not law: see Martineau et al. v. Matsqui Institu
tion Inmate Disciplinary Board, [1978] 1 S.C.R.
118. See also Ibrahim v. Canada (Disciplinary
Tribunal) (order dated November 4, 1985, Federal
Court, Trial Division, T-1325-85, not yet reported)
at page 22; Bovair v. Regional Transfer Board
(1986), 2 F.T.R. 185 (F.C.T.D.), at page 187. The
Ontario Court of Appeal took a similar view of
Commissioner's directives in R. v. Institutional
Head of Beaver Creek Correctional Camp, [1969]
1 O.R. 373, at page 380. Standing orders appear
to me to be of the same nature. I believe it is not
possible to treat such directives and orders as law,
conferring on or denying rights to inmates,
because they are for the internal management of
the Corrections Service. They define the contrac
tual obligations of members of that Service.
The same reasoning does not apply to the re
striction in subsection 32(2) of the Regulations.
These are unquestionably "law" but no evidence,
and little argument, was presented to me to justify
this provision as a "reasonable limit" within sec
tion 1 of the Charter. Such justification is not
apparent to me. It seems to me unreasonable to
leave to an authorized correctional officer the
discretion to decide whether litigation by an
inmate will assist in his "reformation and rehabili
tation". Access to the courts should not depend on
such vague criteria.
It may be that some limit on withdrawals from
inmates' savings accounts for the purposes of legal
proceedings, depending on the nature of those
proceedings, may be justifiable if properly pre
scribed by law. It must be underlined that what I
am dealing with here is, not the particular situa
tion of the applicant, but a general limitation on
those withdrawals which could affect any kind of
litigation, no matter how directly related to ques
tions of liberty and security, applicable regardless
of the circumstances of the inmate or his litigation.
Although the applicant may or may not be
asserting in his litigation rights to liberty and
security, he is met with general rules which limit
his access to funds for any litigation. He thus has
standing to seek a remedy based on the general
invalidity of such rules.
An order in the nature of mandamus will there
fore issue to require the Commissioner of Peniten
tiaries to take the necessary steps to ensure that if
the applicant gives a direction in writing for the
withdrawal of any funds in his savings account
required by him for the purposes of litigation, such
direction will be acted upon without regard to any
limitations in the Penitentiary Service Regula
tions, Commissioner's directives, or standing
orders, subject only to any reasonable method of
verification that the funds are being spent for this
purpose.
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.