T-1529-85
Ivan William Mervin Henry (Plaintiff)
v.
The Queen (Defendant)
INDEXED As: HENRY v. CANADA
Trial Division, Strayer J.—Prince Albert, Sas-
katchewan, March 17, 18; Ottawa, April 2, 1987.
Penitentiaries — Opening of inmate's mail — Correspond
ence with counsel — Action claiming injunction, damages —
Action dismissed as no violation of rights — Penitentiary Act,
R.S.C. 1970, c. P-6, s. 29 — Penitentiary Service Regulations,
C.R.C., c. 1251, s. 28.
Constitutional law — Charter of Rights — Criminal process
— Search or seizure — Opening of inmate's mail — Exami
nation of reasonableness in light of Commissioner's Directives
— 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, 10(b), 11(d), 12, 15(1), 24(1) —
Penitentiary Act, R.S.C. 1970, c. P-6, s. 29 — Penitentiary
Service Regulations, C.R.C., c. 1251, s. 28.
Bill of Rights — Opening by penitentiary authorities of
convict's mail — Whether violation of property rights —
Right to possession of property within institution extinguished
for period of lawful confinement — Inmate not having right to
receive mail unopened — Confidentiality of documents matter
of privacy, not property — No denial of equality — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(a),(6),
2 (e), (f), (g)•
Practice — Costs — Inmate's action for allegedly wrongful
opening of correspondence dismissed — No reason to give
convicts special treatment when awarding costs — Costs
against plaintiff.
The plaintiff, an inmate at the maximum security Saskatche-
wan Penitentiary, seeks various forms of relief for wrongful
opening, by penitentiary authorities, of incoming mail
addressed to him.
Held, the action should be dismissed, with costs.
None of the provisions of the Canadian Bill of Rights apply
in this case. The right of the "enjoyment of property" in
paragraph 1(a) cannot be relied on as an offender's property
rights are severely restricted upon conviction and imprison
ment. Furthermore, the tendency has been to treat confidential
ity of documents as a matter of privacy, not of property. Nor
can paragraphs 2(e),(/) and (g) be of any assistance to the
plaintiff.
Sections 7, 9 and 12 and paragraphs 10(b) and 11(d) of the
Charter obviously have no application here. And since there has
been no evidence of discrimination as compared with other
inmates, subsection 15(1) of the Charter and paragraph 1(b) of
the Bill of Rights do not apply. Finally, the International
Covenant on Civil and Political Rights is of no assistance as it
has no force of law in Canada and is not enforceable by
Canadian courts.
It remains to be determined whether the opening of inmates'
mail is a violation of the Charter's protection against unreason
able searches or seizures in section 8. Section 1 of the Charter
cannot be invoked to justify that practice as the criteria for
censorship (authorized in section 28 of the Penitentiary Service
Regulations) are much too vague. Furthermore, the various
directives on the handling of inmates' correspondence are not
"law" but internal administrative rules for the guidance of
penitentiary staff. The issue, therefore, is whether the opening
of the plaintiffs mail was "reasonable" within the meaning of
section 8 of the Charter. Correspondence between inmates and
legal counsel normally should not be opened, according to a
Commissioner's Directive, where the letter is sufficiently identi
fied as coming from lawyers. There is a justified concern about
possible unauthorized use of lawyers' stationery to introduce
materials and information into a penitentiary. The problem
here is that none of the lawyers' letters which were opened were
sufficiently identified as such. That the defendant's officers
acted in good faith and not indiscriminately is evidenced by the
fact that the plaintiff received 36 letters unopened because they
were treated as privileged. There was therefore no unreasonable
search with respect to mail from lawyers.
In spite of a developing practice, itself contrary to the normal
practice, of not awarding costs against an unsuccessful litigant
in a civil matter when he happens to be a convicted criminal,
costs are awarded against the plaintiff. There is no reason to
give convicts special treatment in this regard.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Institutional Head of Beaver Creek Correctional
Camp, [1969] 1 O.R. 373 (Ont. C.A.); Solosky v. The
Queen, [1980] 1 S.C.R. 821, confirming [1978] 2 F.C.
632 (C.A.), confirming [1977] 1 F.C. 663 (T.D.); Hunter
et al. v. Southam Inc., [1984] 2 S.C.R. 145; Prata v.
Minister of Manpower & Immigration, [1976] 1 S.C.R.
376; Mitchell v. The Queen, [1976] 2 S.C.R. 570; Re
Ontario Film & Video Appreciation Society and Ontario
Board of Censors (1983), 147 D.L.R. (3d) 58 (Ont. Div.
Ct.), affirmed (1984), 5 D.L.R. (4th) 766 (Ont. C.A.);
Luscher v. Deputy Minister, Revenue Canada, Customs
and Excise, [1985] 1 F.C. 85 (C.A.); Martineau et al. v.
Matsqui Institution Inmate Disciplinary Board, [1978] I
S.C.R. 118; Martineau v. Matsqui Institution Discipli-
nary Board, [1980] 1 S.C.R. 602; Belliveau v. R., [1982]
1 F.C. 439 (T.D.).
REFERRED TO:
Russell v. Radley, [1984] 1 F.C. 543 (T.D.).
APPEARANCE:
Ivan William Mervin Henry on his own
behalf.
COUNSEL:
Martel D. Popescul for defendant.
SOLICITOR:
Deputy Attorney General of Canada for
defendant.
Plaintiff on his own behalf, Ivan William
Mervin Henry, Saskatchewan Penitentiary.
The following are the reasons for judgment
rendered in English by
STRAYER J.: This is an action by an inmate at
the Saskatchewan Penitentiary seeking various
forms of relief in respect of what he alleges to be
wrongful opening by penitentiary authorities of
incoming mail addressed to him. He seeks an
injunction
... forbidding any further deliberate or reckless opening of
mail unless instructed by, Commissioner, Warden, Regional or
National Headquarters if in doubt to what is "privileged mat
ter" and restraining prison staff from acting against unjustly,
this plaintiff herein.
He also seeks damages in the amount of $150,000
in respect of the same matters and any other
remedy which the Court considers appropriate
pursuant to subsection 24(1) of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. He has acted for
himself throughout this action.
The plaintiff in his statement of claim, filed July
10, 1985 was referring, of course, to mail opened
and received prior to that date. In his list of
documents filed for purposes of discovery and
dated August 30, 1985 he listed further such mail
including that received since the action was com
menced and before the list was filed. At the trial,
however, he wished to put in evidence a much
larger number of items of correspondence dated
from early 1984 through to early March 1987,
some two weeks before the trial. Counsel for the
defendant did not object to the issues being
expanded in this way and I admitted all the docu
ments which the plaintiff wished to put in as
exhibits. As will be noted later, I found some of
them not to be relevant to the main issue, namely
the right of the plaintiff to receive incoming mail
of certain kinds in an unopened state. The plaintiff
agreed at the beginning that this was the issue. As
a result the plaintiff put in 111 exhibits.
The plaintiff alleges that the activities of the
penitentiary authorities, the servants of the
defendant, violated certain of his rights under the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III], the Canadian Charter of Rights and Free
doms, and under the Commissioner's Directives
and the Standing Order relevant to this institution
with respect to inmate correspondence. He also
argued orally that there had been a violation of the
International Covenant on Civil and Political
Rights [Dec. 16, 1966, [1976] Can. T.S. No. 47]
to which Canada acceded in 1976.
I shall demonstrate briefly why I do not believe
that a number of the grounds relied upon by the
plaintiff are relevant to this case. First with respect
to the Canadian Bill of Rights, he relies on para
graphs 1(a) and (b), and 2(e),(f) and (g). His
reliance on paragraph 1(a) is presumably to show
that his right to the "enjoyment of property" has
been taken away without "due process of law". It
seems to be clear that upon conviction and sen
tence of imprisonment, a prisoner's property rights
are severely restricted. As the Ontario Court of
Appeal said in R. v. Institutional Head of Beaver
Creek Correctional Camp, [1969] 1 O.R. 373, at
page 379, such a sentence:
... extinguishes, for the period of his lawful confinement, all
his rights to liberty and to the personal possession of property
within the institution in which he is confined, save to the extent,
if any, that those rights are expressly preserved by the Peniten
tiary Act.
Therefore any right which the plaintiff may have
had to the possession of his mail was extinguished
by his sentence of imprisonment, and he has not
shown that any new right was created by or pursu
ant to the Penitentiary Act [R.S.C. 1970, c. P-6].
As I will demonstrate below, the Commissioner's
Directives do not themselves create rights for an
inmate, even if he can demonstrate that they have
not been followed. Further, the tendency has been
to treat confidentiality of documents as a matter of
privacy, not of property. See Solosky v. The
Queen, [1980] 1 S.C.R. 821, at page 837; Hunter
et al. v. Southam Inc., [1984] 2 S.C.R. 145, at
page 159.
The plaintiff's reliance on paragraph 1(b) of the
Bill of Rights relates to equality before the law
and that can be dealt with in the discussion below
of section 15 of the Charter.
He invokes paragraph 2(e) of the Bill of Rights,
but this only relates to the right to a fair hearing
for the determination of his rights and obligations.
As I have already indicated, within the prison
context I do not believe that an inmate has any
"right" to receive his mail unopened. What is
involved is an administrative decision pursuant to
the Penitentiary Act, the Penitentiary Service
Regulations [C.R.C., c. 1251], and the Commis
sioner's Directives, none of which, for reasons I
will explain below, confer any rights on the
inmate. Paragraph 2(e) has no application to the
exercise of administrative discretion: see Prata v.
Minister of Manpower & Immigration, [1976] 1
S.C.R. 376; Mitchell v. The Queen, [1976] 2
S.C.R. 570, at pages 588 and 596.
The plaintiff also invokes paragraphs 2(f) and
(g) of the Bill of Rights. Paragraph 2(f) is irrele
vant because it deals with a person charged with a
criminal offence. In respect of his letters, the
plaintiff is not charged with a criminal offence.
Paragraph 2(g) relates to the right to the assist
ance of an interpreter during "proceedings". There
are no "proceedings" in question here nor has the
plaintiff shown any reason why he would need an
interpreter.
With respect to the various sections of the
Charter which the plaintiff invokes, section 7 is
irrelevant because the mere opening of the plain
tiff's mail does not as such threaten his "life,
liberty and security of the person". Section 9 is
irrelevant as the handling of an inmate's mail does
not give rise to arbitrary detention or imprison
ment. Paragraph 10(b) with respect to the right to
"retain and instruct counsel" is irrelevant as it
applies only "on arrest or detention". This clearly
is designed to protect a person when first arrested
or detained and does not apply to a person impris
oned on a continuing basis subsequent to convic
tion, which is the situation in the present case
where the plaintiff complains of improper interfer
ence with his correspondence with barristers and
solicitors in respect of various proceedings he
wishes to take to reopen his convictions (unsuc-
cessfully appealed already) and to obtain remedies
concerning the conditions of his confinement.
Similarly, paragraph 11(d) involving the presump
tion of innocence has no relevance as the plaintiff
in respect of the matters in issue here no longer
stands "charged with an offence" and it is difficult
to see what relevance that presumption can have to
the handling of his mail. With respect to section
12, I am not prepared to find that the opening of
incoming mail, even if done improperly, amounts
to "cruel and unusual treatment or punishment".
To so find would be to trivialize this important
provision of the Charter.
With respect to subsection 15 (1) of the Charter,
and paragraph 1(b) of the Canadian Bill of Rights
as referred to above, I am unable to find any
denial of equality. In general, it may be said that
discrimination or denial of equality arises only
where persons similarly situated are treated differ
ently by law. In the present case, the relevant
"class" or "group" which must be treated similarly
would be the general inmate population of the
Saskatchewan Penitentiary or perhaps the inmate
population of all federal penitentiaries. No evi
dence was introduced to show how other inmates
are treated at the Saskatchewan Penitentiary, or
elsewhere, in respect of the handling of their mail
and I am therefore unable to make any finding of
unequal treatment for the plaintiff. The internal
rules followed by penitentiary officers are them
selves neutral in this respect.
With respect to the plaintiff's argument con
cerning the International Covenant on Civil and
Political Rights, important as such an internation
al instrument is, and even though its breach can
expose this country to complaints being made
directly to the United Nations by individuals
under the Optional Protocol, it does not have the
force of law within Canada and is not enforceable
by Canadian courts. At times it may be helpful in
interpreting domestic law, but I am unable to see
how it is of assistance in this case.
This leaves for further consideration the plain
tiff's claim that he has been denied rights guaran
teed to him under section 8 of the Charter. This
section provides that:
8. Everyone has the right to be secure against unreasonable
search or seizure.
It appears to me that the opening of mail can be
viewed as a "search". Further, the Supreme Court
of Canada has said in Hunter et al. v. Southam
Inc., [1984] 2 S.C.R. 145, at page 159 that the
guarantee given by this section goes at least as far
as protecting a right of privacy and that it is not
primarily designed for the protection of one's own
property. The Court went on to say at pages
159-160 that in determining whether a search is
"reasonable" or "unreasonable":
... an assessment must be made as to whether in a particular
situation the public's interest in being left alone by government
must give way to the government's interest in intruding on the
individual's privacy in order to advance its goals ....
The government's goal in that case seemed to be
law enforcement. In the present case the govern
mental goal would appear to be protection of
security within the penitentiary. The witness called
by the defendant in this case, Mr. George Zwack,
Supervisor of the Visits and Correspondence,
Department of the Saskatchewan Penitentiary,
testified that the opening of mail was normally
done for the purpose of searching for contraband
(e.g., drugs, money, etc.) or any other matters
which might affect the good order of the institu
tion. Such material might include information
about another inmate or his family or information
that might lead to disorder or promote a breach of
security. I will therefore concentrate on section 8
of the Charter and the question of whether there
has been an "unreasonable search" in this case.
In doing so it is useful to reiterate certain basic
principles. As confirmed by the Supreme Court of
Canada in Solosky v. The Queen, [ 1980] 1 S.C.R.
821, at page 839:
... a person confined to prison retains all of his - civil rights,
other than those expressly or impliedly taken from him by law.
See also Beaver Creek case supra, at pages
378-379; Russell v. Radley, [1984] 1 F.C. 543
(T.D.), at page 556. As noted in the Russell case,
within the prison context limitations on many
Charter rights may be more readily upheld under
section 1 of the Charter. I am unable, however, to
find that the limits imposed on the plaintiff's
privacy rights, if such they be, in the form of the
opening of private correspondence addressed to
him, could be justified under section 1 of the
Charter which provides that the rights and free
doms set out in the Charter are subject only:
1. ... to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
In my view the only "law" relevant to mail open
ing is section 29 of the Penitentiary Act, R.S.C.
1970, c. P-6, which authorizes the Governor in
Council to make regulations, inter alia, for the
custody and discipline of inmates, and section 28
of the Penitentiary Service Regulations made
thereunder which provides:
28. In so far as practicable, the censorship of correspondence
shall be avoided and the privacy of visits shall be maintained,
but nothing herein shall be deemed to limit the authority of the
Commissioner to direct or the institutional head to order
censorship of correspondence or supervision of visiting to the
extent considered necessary or desirable for the reformation
and rehabilitation of inmates or the security of the institution.
It will be noted that this simply confers a broad
authority on the Commissioner and the institution
al head to order censorship, inter alia, for "the
security of the institution". I do not think one can
rely on such provisions as a law which prescribes
limits on rights. The criteria for censorship are
much too vague. See Re Ontario Film & Video
Appreciation Society and Ontario Board of Cen
sors (1983), 147 D.L.R. (3d) 58 (Ont. Div. Ct.),
affirmed by (1984), 5 D.L.R. (4th) 766 (Ont.
C.A.); Luscher v. Deputy Minister, Revenue
Canada, Customs and Excise, [1985] 1 F.C. 85
(C.A.). Section 29 of the Penitentiary Act also
authorizes the Commissioner of Penitentiaries to
make directives for, inter alia, the custody and
discipline of inmates and the administration of the
Corrections Service. Various directives have been
issued with respect to the handling of inmates'
correspondence to which reference will be made
later. It should be noted however that it now seems
clear that such directives cannot be regarded as
"law" but instead as internal administrative rules
for the guidance of penitentiary staff. Breaches of
the rules, even though they work to the disadvan
tage of the inmate, do not give rise to rights of
action for inmates but instead to disciplinary
action within the Correction Service: see Beaver
Creek case supra, at pages 380-381; Martineau et
al. v. Matsqui Institution Inmate Disciplinary
Board, [1978] 1 S.C.R. 118, at page 129. For this
reason the real issue before me is not whether the
employees of the defendant have complied with the
Commissioner's Directives and Standing Order
but instead whether their conduct has been lawful
when tested by general principles of law, in this
case section 8 of the Charter. As Dickson J. [as he
then was] said in Martineau v. Matsqui Institu
tion Disciplinary Board, [ 1980] 1 S.C.R. 602, at
page 630, in relation to the conduct of a prison
disciplinary tribunal in respect of the hearing of a
disciplinary offence:
The question is not whether there has been a breach of the
prison rules, but whether there has been a breach of the duty to
act fairly in all the circumstances.
Therefore, although counsel for the defendant
argued as an alternative that if there were some
violation of a Charter right, it was justified under
section 1, I am unable to accept that argument
because I can find no sufficient prescription by law
of any limitation on the plaintiff's rights. I must
therefore confine myself to section 8 to see wheth
er there has in fact been an invasion of any right
protected by that section through an "unreason-
able" search. The Commissioner's Directives will
be relevant, notwithstanding that they are not
"law", because I understand the defendant's posi
tion to be that the Directives were complied with
in the handling of the plaintiff's mail. The Direc
tives therefore provide a description of what the
defendant says the penitentiary staff did. It
remains for me to determine whether that is in fact
what happened and whether their conduct, wheth
er in compliance with the Directives or not, can be
seen as "reasonable" within the sense of section 8
of the Charter.
To this end I have examined carefully all of the
exhibits filed by the plaintiff. His complaints are
that two categories of incoming mail have been
improperly opened. One of these categories is mail
received from lawyers. The other category is mail
received from persons who are described as "privi-
leged correspondents" in the Commissioner's
Directives. I have divided the exhibits on this basis,
putting to the side exhibits which fall within nei
ther category or which were apparently submitted
as indirect means of supporting the plaintiff's
claims. These will be discussed later.
Solicitor—Client Correspondence
First, with respect to correspondence received
from lawyers, the principal Commissioner's Direc
tive, number 600-4-04.1 issued on February 29,
1984 dealt with this matter for most of the period
in question. Section 27 of that Directive expressly
purports to lay down rules in accordance with the
Solosky decision supra. The fundamental rule
which it states is that:
27. ...
Correspondence between inmates and legal counsel shall nor
mally be exempt from opening and censorship.
The remainder of the section provides for circum
stances in which such mail may be opened and
read in whole or in part, but this is all prefaced by
the words:
27... .
The Director may direct that an envelope which appears to
have originated from or to be addressed to a solicitor may be
opened for inspection ....
in certain circumstances. The "Director" referred
to is the head of the institution in question, in this
case the Warden of the Saskatchewan Penitentia
ry. The defendant neither alleged, nor adduced
any evidence, that the Warden had given any such
direction with respect to the plaintiff's mail. It
may be added that a new Commissioner's Direc
tive, number 085, issued January 1, 1987 which
amended in part the previous directive, is essential
ly the same in this respect: see sections 11 and 12
thereof. The essential question then is whether the
defendant's officers wrongly opened letters from
the plaintiff's legal counsel.
In evidence and in argument, the plaintiffs
position is that he received several pieces of mail
from barristers and solicitors which had been
opened, and therefore he contends that his case is
established. The position of the defendant is that
no mail from barristers and solicitors, which could
be identified as such, was opened: the problem was
one of identification of such mail. Mr. Zwack, the
witness for the defendant, explained the concerns
which the staff of the Visits and Correspondence
Office (which inspects and opens inmate mail)
have with respect to a possibility that the station
ery of lawyers' offices may be available to office
staff or unauthorized people who may use it in an
unauthorized way. It is therefore the practice of
the Visits and Correspondence Office to require
that for incoming mail to be treated as coming
from a lawyer, there must be sufficient identifica
tion on the outside of the envelope that it is from a
recognized lawyer himself. While staff of the Sas-
katchewan Legal Aid Commission and many other
lawyers are familiar with the institution's require
ments and comply with them, he admitted that
there were many lawyers who did not seem to be
familiar with the requirements or else were not
concerned as to whether their mail was opened
before it reached the inmate. Where there is no
such clear identification on the envelope that a
letter actually comes from a lawyer, it is opened.
Thus, the issue between the parties seems to be
whether the letters in question were sufficiently
identified as coming from lawyers that they should
have been treated as "correspondence between
inmates and legal counsel" within the meaning of
the Directive and thus should not have been
opened. It may be noted here that the defendant is
adopting, as have the Commissioner's Directives, a
definition of protected mail which goes beyond the
confidential solicitor-client privilege as discussed
at length in the Solosky case supra, at pages
833-838. Among the requirements for solicitor-cli
ent privilege confirmed by the Court at page 837
are those that communications to be privileged
must be for seeking or giving advice, must be
intended by the parties corresponding to be confi
dential, and must ultimately be read by a judge,
document by document, to confirm that the privi
lege attaches to each document. Further, the
Court held at page 837 that the privilege is not in
the nature of a property right and only arises
where there is some possibility that the document,
if disclosed, may be used as evidence. The Court
also held that, whether one considers this to
involve only solicitor-client privilege, or a broader
right of confidentiality of communications with
one's legal advisers, the protection relates not to
opening of mail as such but to the use of informa
tion so obtained. See [1980] 1 S.C.R., at pages
837 and 842.
The Commissioner's Directive has adopted the
broader view, suggested by the Court in that case,
that there is a right to communicate in confidence
with one's legal advisor which is a fundamental
civil and legal right, the justification being in the
prison context that any possibility of the communi
cation being read by a third person would have a
"chilling" effect upon the frank disclosure of con
fidences which should characterize the solicitor-
client relationship. Thus the Commissioner's
Directive simply requires that no mail passing
from a solicitor to an inmate should be opened
except where directed by the head of the institu
tion. It is not necessary that there be a solicitor-
client relationship between the sender and the
receiver, nor that legal advice be given in it, nor
that the parties intended that it should be confi-
dential. In short, the defendant in insisting that
there has been compliance with the Directive is
saying that it accepts that any mail coming from a
solicitor to an inmate should not be opened, but
simply asserts that such mail addressed to the
plaintiff which was opened was not identifiable as
mail from a lawyer.
In looking at the four exhibits consisting of
letters from lawyers as put in evidence by the
plaintiff, and which he says were received in an
opened condition, three of the exhibits consist of
such letters and the envelope which accompanied
them. The letters involved all have date stamps on
them of the Visits and Correspondence Office.
This is the normal indication that a letter has been
opened before delivery to the inmate, and I accept
that these letters were so opened. Two of the
exhibits involve letters from lawyers in law firms,
one in Regina and one in Toronto, where the name
of the firm appears on the envelope but there is no
indication, such as the use of the words "barristers
and solicitors", to indicate that it is a law firm.
Further, there is nothing on the outside of the
envelopes to indicate that the letters inside are
from a specific lawyer in the firm. While it is true
that with enough care the officer in the Visits and
Correspondence Office could first have guessed
that the name of a firm on the envelope was
probably that of a law firm, secondly might have
consulted a Law List to identify the law firm, and
thirdly might have initiated an inquiry with that
firm as to who had sent the letter, I cannot say
that it was unreasonable for the officer to treat it
as ordinary correspondence and open it. According
to the evidence, there was received in this Office
on the average about 200 letters per week for
inmates and about an equal number are sent out
by inmates and must also be handled by this
Office. Much of this mail requires processing in
one form or another and it is not surprising that
officers have a limited amount of time for investi
gating the origins of incoming mail to see whether
it is from a law firm. Further, I accept the position
of the penitentiary officials that they must be
satisfied that the letter actually has come from a
lawyer in the law firm in question. I am impressed
by the concerns explained by Mr. Zwack that the
stationery of lawyers may not always be kept
secure from unauthorized use and that if the mere
name of a law firm on the outside of an envelope
were sufficient to assure entry without inspection,
this device could be used by unscrupulous and
unauthorized people to introduce materials and
information into a penitentiary to the possible
detriment of its security and good order.
A third exhibit consists of a letter from an
Assistant Professor of Law at the University of
Saskatchewan with whom the plaintiff has corre
sponded in connection with his case. In this case
the only identification on the outside of the
envelope is that it is from the College of Law of
the University of Saskatchewan in Saskatoon. I do
not think it unreasonable that the officers found
this to be inadequate identification of solicitor-
client mail. One would assume that at least the
vast majority of mail emanating from a College of
Law is not for the purpose of corresponding as
"legal counsel" as referred to in the directives.
Again, legitimate concerns could be harboured
concerning the extent of access to College of Law
stationery.
The fourth exhibit, P-60, involving letters
received by the plaintiff from lawyers, consists of
two letters dated June 7, 1984 and July 18, 1984
from a Regina lawyer. Unfortunately the original
envelopes are not attached to these letters. I am
not prepared to rely on the plaintiff's memory as to
the form of identification which was on the accom
panying envelopes, considering that nearly three
years have elapsed since these letters were received
and the plaintiff has received dozens of letters in
the interim. I might note, however, that the letter
of June 7, 1984 is the only one among all the
correspondence from lawyers which could conceiv
ably be regarded as within the traditional solicitor-
client privilege. What is said there does, I think,
constitute legal advice whereas the other letters all
have to do with the possibility of the lawyer in
question representing the plaintiff. Be that as it
may, without better evidence as to the identifica
tion on the envelopes of these letters I am unable
to say that the officers acted unreasonably in
opening them.
As further evidence of their good faith and
honest attempts to comply with the Directives, Mr.
Zwack testified that during the period in question
the plaintiff had in fact received 36 letters that
were treated as privileged, that were unopened and
delivered to him in that state. He produced a log
book which was prepared in the normal course of
business of the institution in which the plaintiff
had placed his initials on each occasion to
acknowledge receipt of a letter unopened. Mr.
Zwack also said that he had discussed the problem
of the opening of correspondence with the plaintiff
on various occasions and explained to him steps he
might take to advise his correspondents as to how
mail could be marked to avoid opening. He also
emphasized that the Saskatchewan Penitentiary is
a maximum security institution in which there is
necessarily a higher degree of concern regarding
security.
It may also be noted that, although it was held
in Solosky, as indicated above, that the protection
of confidentiality of solicitor-client correspondence
only extends to the improper use of information
derived from it, there is no evidence that any
information that might have been so obtained in
this case was so used, or that there is a danger of it
being so used.
All in all I am satisfied that what was done with
respect to the plaintiffs mail from lawyers did not
amount to an "unreasonable search" in the mean
ing of section 8 of the Charter. As held by the
Supreme Court of Canada in the case of Hunter et
al. v. Southam Inc. supra, there must be a balanc
ing of the interest of the individual in his own
privacy against the interest of the state in main
taining, as in this case, the security of penal insti
tutions. While the officers at this institution take a
very strict view of what may be regarded as letters
from legal counsel to their client, I am unable to
say that this is unreasonable in the context of a
maximum security institution. A similarly strict
approach at the Dorchester Institution was upheld
by my colleague Collier J. in Belliveau v. R.,
[1982] 1 F.C. 439 (T.D.), admittedly before the
Charter came into effect but within the context of
the law of torts. The Court should not be quick to
"second-guess" the judgments of prison officers in
such matters. Dickson J. said in Martineau, supra,
at page 630:
The very nature of a prison institution requires officers to make
"on the spot" disciplinary decisions and the power of judicial
review must be exercised with restraint.
In the Solosky case he said at pages 839-840:
As a general rule, I do not think it is open to the courts to
question the judgment of the institutional head as to what may,
or may not, be necessary in order to maintain security within a
penitentiary.
In my view such considerations apply to the han
dling of mail. Officers are constrained by volume
of correspondence and requirements such as the
present Standing Order applicable to this institu
tion which provides that incoming mail shall not
be held more than 24 hours. Prisoners no doubt
want their mail as quickly as possible. All of this
creates pressure for quick decisions. While one
might find the general approach somewhat restric
tive of privacy, it is not possible to say that it is
unreasonable in the circumstances.
"Privileged Correspondence"
I then turn to the other category of mail opened
by the prison authorities of which the plaintiff
complains, that which is described as "privileged
correspondence" in the Commissioner's Directives.
In the 1984 Directive, section 6, such correspond
ence is defined as:
6. ... written communication between an inmate and an
official holding a position of public office which is listed in
Annex "A".
Annex "A" reads as follows:
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. (Office of) The Correctional Investigator
5. Chairman of the National Parole Board
6. Inspector General
SECTION II
GENERAL PRIVILEGED CORRESPONDENTS
I. Governor General of Canada
2. Canadian Human Rights Commission (including the Chief
Commissioner)
3. (Office of) The Commissioner of Official Languages
4. Members of the House of Commons
5. Members of the Legislative Council for the Yukon and the
Northwest Territories
6. Members of the Provincial Legislatures
7. Members of the Senate
8. (Offices of) The Information and Privacy Commissioners
9. Judges, Magistrates of Canadian courts (including their
Registrars)
* 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".
Section 34 of the same Directive provides that
such correspondence "shall be forwarded uno
pened to the addressee". Section 39 provides that
"Privileged correspondence shall be exempt from
any form of censorship." Section 40 provides that
in certain cases the Director (of the institution)
may authorize in writing the inspection of privi
leged correspondence but in such case it shall be
opened in the presence of the inmate unless he
waives in writing his right to be present. This
provision is irrelevant to the present case since the
defendant has not alleged, nor proven, any such
authorization by the Director for the opening of
any such mail received by this inmate, nor was
there any evidence that such mail had been opened
in his presence.
It is also relevant to note that in section 34 of
this Directive, after referring to such privileged
correspondence, there is the following sentence:
34. ... Letters enclosed in envelopes bearing a logo or seal
indicating an originator other than those specifically listed in
Annex "A" shall not be considered as privileged.
The amending Directive, number 085, effective
January 1, 1987 expressed the same principles. It
adds additional "privileged correspondents" but
none which are relevant to the present case.
For the reasons which have been stated above,
the Commissioner's Directives in respect of privi
leged correspondence cannot, as such, be deter-
minative of the duty owed by the defendant's
officers to the plaintiff in respect of his mail. To
the extent, however, that the Directives set out a
procedure which amounts to a "reasonable" search
of mail they would, if they had been followed,
demonstrate that section 8 of the Charter has not
been violated.
In his evidence and argument, the plaintiff has
taken the position that the mere name or logo of a
privileged correspondent on the outside envelope
should be sufficient to identify the mail as privi
leged and that therefore the Visits and Corre
spondence officers should not have opened any
mail bearing such identification. Although he did
not make the argument, this contention is arguably
supported by the wording of section 34 of the 1984
Commissioner's Directive as quoted above which
indicates that if an envelope does not bear a logo
or seal of any of the correspondents listed in
Annex "A" then it shall not be considered as
privileged. This might be taken to imply that
where such a logo or seal is on the letter, it should
automatically be regarded as containing privileged
correspondence. The defendant through the evi
dence of Mr. Zwack and in argument takes the
position that, just as in the case of correspondence
from lawyers, the inspecting officer has to be
satisfied that the letter has actually come from one
of the persons listed in Annex "A" or from the
office of such an official (where the whole office
has been designated as privileged in Annex "A").
It was explained, and the 1984 Commissioner's
Directive so provides, that certain officials such as
the Commissioner of Corrections and the Solicitor
General use a particular form of identification on
their envelopes which is automatically recognized
as indicating that the letter contains privileged
correspondence. Generally, however, it is the
policy at the Saskatchewan Penitentiary to inter
pret the rules for privileged correspondence as
strictly as those for correspondence from legal
counsel: some identification on the envelope is
required to show that the letter inside indeed came
from the source identified as privileged. Thus for
example a letter from Rideau Hall, the Governor
General's residence, was opened as there was noth
ing to indicate on the outside that the Governor
General herself had written the letter. It is the
"Governor General of Canada" who is listed in
Annex "A", not her office. Similarly, letters from
Members of Parliament are opened unless there is
a sufficient identifier on the envelope. The institu
tion accepts that the franking symbol with a fac
simile of the Member's initials as normally placed
on the outside of the envelope would sufficiently
indicate that the letter was from a Member of the
House of Commons. It will be noted that the list of
privileged correspondents does not include the
Prime Minister of Canada, for example, although
presumably a letter from him would be treated as
privileged if it indicated in the normal way that it
came from him as a Member of Parliament. Thus,
letters from the Prime Minister's office were
opened in this case, letters which were from mem
bers of his staff and not signed by the Prime
Minister. Where the Annex lists, as privileged
correspondents, "Judges, Magistrates of Canadian
courts (including their Registrars)" this is con
strued quite literally so that, for example, a letter
written by a registry officer is not regarded as
privileged. It would be only if the outside of the
envelope indicated clearly, perhaps with an actual
signature or initials, that the letter was from a
judge, magistrate, or the registrar themselves that
it would be treated as privileged. M. Zwack gave
the same explanation for treatment of such corre
spondence as for the treatment of letters from
lawyers: that is, that this is a maximum security
institution, and that its officers cannot know what
degree of security is maintained with respect to the
use of the stationery of these various offices or as
to the persons employed in them. For reasons of
controlling contraband and security of the institu
tion, the rules for privileged correspondence must
be construed equally strictly. Also, Mr. Zwack's
evidence with respect to the plaintiff having
received some 36 pieces of mail unopened during
this period, for which he signed, is relevant in
support of the defendant's position that mail was
not opened in an indiscriminate fashion.
In looking at the mail which the plaintiff claims
to have been "privileged correspondence", I first
noted that some 29 pieces are without any accom
panying envelope and I am therefore unable to
come to a conclusion as to the reasonability of the
actions of the Visits and Correspondence officers
in opening them. The remaining items which have
their original envelopes and whose originator could
arguably fall within the list of "privileged corre
spondents" are from the registries of various courts
including the Supreme Court of Canada, the Fed
eral Court of Canada, the Court of Queen's Bench
of Saskatchewan, the Saskatchewan Court of
Appeal and the British Columbia Court of Appeal.
Of these the majority were from this Court, some
34 pieces. In all of these cases except that of the
Supreme Court of Canada, the envelopes had on
them simply the name of the court and in some
cases a printed seal. In the case of letters from the
Registry of the Court of Queen's Bench of Sas-
katchewan, the envelopes simply bore a provincial
logo, and the words "Saskatchewan Justice—
Court House". In the case of the exhibit of opened
envelopes from the Supreme Court of Canada,
whose contents were not attached, one of them had
a typed label indicating that the sender was the
Supreme Court of Canada but with no other iden
tifier on the envelope. The other envelopes in this
exhibit appear to have no markings at all identify
ing the sender.
There are other exhibits which in my view do
not come within the definition of privileged corre
spondence in the Directive or within the action as
framed by the plaintiff. A number of these ema
nated from the Federal Department of Justice.
The plaintiff contended that any mail coming from
the Department of Justice must be regarded as
from the Minister of Justice, and although the
Minister of Justice is not listed as such in Annex
"A" of the Directive the Minister is a Member of
Parliament and therefore all his mail to an inmate,
and the mail of his department, should be regarded
as privileged. He appeared to be relying in part on
the wording on Department of Justice envelopes
which is in both official languages and which reads
"Department of Justice Canada" and "Ministère
de la justice Canada". The plaintiff contended
that the word "Ministère" referred to the Minister
whereas of course it is the equivalent of "Depart-
ment". The plaintiff's proposition would mean that
any mail from any department whose minister is a
member either of the Senate or of the House of
Commons would be privileged correspondence
when sent to an inmate in a penitentiary. This is
an absurd interpretation. There were other items
of opened mail from originators who have abso
lutely no connection to those in the list of privi
leged correspondents. These include letters from
the Ministry of the Attorney General of British
Columbia, the International Court of Justice at
the Hague, the United Nations Office in Geneva
and from CNCP Telepost (containing a telegram
from the plaintiffs wife).
Plaintiff also put in as exhibits two letters from
the Federal Court of Canada, and one letter from
the Supreme Court of Canada, which he says he
received unopened. The letters from the Federal
Court have, by my observation, no different iden
tification than the many opened letters which he
received from this Court. The letter from the
Supreme Court of Canada, according to the plain
tiff, has neither more nor less identification on it
than did the envelopes of other letters received by
him from that Court which were not available as
evidence. This material was apparently put in to
show inconsistency or lack of good faith by prison
officers in treating similarly marked mail in differ
ent ways.
For reasons stated earlier in this judgment, in
the final analysis I must judge the conduct of the
defendant's officers not by the criteria of the Com
missioner's Directives but by the criteria of section
8 of the Charter. I am unable to say, however, that
the defendant's officers in using the Commission
er's Directives as the criteria for deciding what
originators should be regarded as "privileged cor
respondents" have acted unreasonably. Given that
the prescribed treatment of privileged correspond-
ence in letting it enter the penitentiary in an
unopened condition can potentially give rise to
hazards, it is not unreasonable that the list of those
entitled to communicate with inmates by this
means is somewhat limited. Further I am unable
to say that the rather stringent view which officers
take of identification requirements on the
envelopes is unreasonable, particularly in relation
to a maximum security institution. Officers may
be justifiably concerned as to who may have access
to the stationery of these many officials and elect
ed representatives listed in the Annex.
The fact that there may be some minor inconsis
tencies in the way mail has been handled, working
in favour of the plaintiff in the sense that certain
similar pieces of mail reached him unopened, does
not prove malice, negligence, or a lack of rational
ity in the procedures for opening mail. According
to the Supervisor of the Visits and Correspondence
Department, Mr. Zwack, he has a staff of four
working in this Office. The staff must maintain
records of visits to inmates, make arrangements
with respect to inmate phone calls, etc. for some
450 inmates. They must also handle on the aver
age about 400 pieces of inmate mail per week
either incoming or outgoing. In such circumstances
minor errors and inconsistencies are bound to arise
but that does not, in my view, make the whole
process unreasonable.
I therefore come to the conclusion that there
was no violation of the plaintiffs rights and his
action should be dismissed.
I am also going to award costs against the
plaintiff. In doing so I adopt the position stated by
Addy J. at trial in Solosky v. The Queen, [1977] 1
F.C. 663 (T.D.), at page 671:
A practice seems to be developing lately whereby costs,
which are normally awarded against an unsuccessful litigant in
a civil matter, are not awarded when the litigant happens to be
a convicted criminal. This practice, in my view, is to be
deplored and discouraged. I can see no reason whatsoever why
a person in the position of the plaintiff should be afforded
special treatment regarding costs which would not be enjoyed
by an ordinary citizen. Furthermore, in deciding whether costs
should or should not be awarded against an unsuccessful plain
tiff, neither the ability to pay nor the difficulty of collection
should be a deciding factor but, on the contrary, the awarding
or refusal of costs should be based on the merits of the case.
Unless special circumstances exist to justify an order to the
contrary, costs should normally follow the event. No such
circumstances exist here.
Costs were similarly awarded against the plaintiff
in that case on appeal to the Federal Court of
Appeal, [1978] 2 F.C. 632, and to the Supreme
Court of Canada, supra.
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.