Ontario Superior Court of Justice, Divisional Court

Court File No.: 99-DV-386

Date: 2000-02-24 and 2000-04-04

Matlow, McLean and Aston JJ.

Counsel:

Diane Magas, for applicants.

Troy Harrison and Lori Sterling, for respondents.

[1] Matlow J. (dissenting):—With the greatest of respect, I am unable to agree with the disposition of the majority.

[2] I would allow this application for judicial review and require the respondents to provide the applicants with reasonable access to telephones that would allow them to make outgoing calls without the automatic twenty-minute time limit now imposed.

[3] The issue raised on this application arises in the context of the following facts. The applicants, McIntyre and Chenier, are both inmates at the Ottawa-Carleton Detention Centre (OCDC). Both of them are awaiting trial. Neither of them is presently serving a sentence or is detained for any other reason other than to await his trial.

[4] The applicant, Acker, is no longer a party to this proceeding.

[5] The respondents are not properly described in the title of proceeding. The applicants by this application seek to attack a decision made by the Minister of Correctional Services and implemented on his direction by the Superintendent of the OCDC. In light of this clear understanding, counsel for the respondents graciously waived any objection to the regularity of this proceeding by reason of the way the respondents are described.

[6] The applicants' complaints arise out of the implementation of the "Millennium Phone System" provided by Bell Canada at the OCDC as part of an ongoing pilot study by the Ministry on November 20, 1999. The most important change in the existing telephone system brought about by the implementation was the imposition of a twenty-minute time limit on all calls placed by inmates including the applicants. Whereas before inmates could make unlimited local collect calls for $.75 each, the Millennium system automatically terminates each call at the end of twenty minutes after a one minute verbal warning and requires the caller to start a new call at a further cost of $.75 if he wishes to talk further.

[7] The evidence tendered by the applicants in support of this application establishes that the opportunities available to the applicants to communicate with persons outside the institution are significantly reduced as a result of the implementation of the Millennium system in comparison with what was available under the system previously used. It is more difficult for them to have lengthy telephone conversations because conversations that require more than twenty minutes must be redialed and each redialing requires that the person called be willing to incur a new charge. Persons unable to afford repeated charges, therefore, cannot be called repeatedly.

[8] The respondents claim that there are widespread advantages to the Millennium system. For example, they say that it helps custodial officers to control "muscling" by inmates. "Muscling" occurs when inmates try to control the access by other inmates of the telephone system as a means of obtaining favours from them. Another claimed advantage is the improvement in equity within the institution by providing for a fairer distribution of telephone access among inmates during peak usage times.

[9] It is submitted on behalf of the applicants that the implementation of the Millennium system has resulted in a violation of the applicants' "freedom of thought, belief, opinion and expression" which is conferred by section 2(b) of the Canadian Charter of Rights and Freedoms. It is also submitted on their behalf that the implementation of the system violates the statutory provisions which apply to the administration of the OCDC.

[10] The respondents deny that the implementation of the Millennium system violates either the statutory provisions or the Charter.

[11] The majority would upheld the position of the respondents for the reasons already given.

[12] I would agree with the disposition of the majority and their reasons if they were confined only to inmates who have been convicted and sentenced. However, although I concur with the view of the majority as it pertains to inmates awaiting trial with respect to whether there has been a violation of the statutory provisions, I am persuaded that there has been a breach of section 2(b) of the Charter with respect to such inmates. It is to this extent only that I differ from the views of the majority.

[13] None of the counsel sought initially to urge the Court to consider that there may be a difference between the Charter rights conferred upon inmates awaiting trial and inmates convicted and sentenced for the purpose of this application. It was not until I raised this issue with them that they addressed this question at the initial hearing of this application.

[14] Subsequent to the hearing, counsel for the respondents submitted further written submissions regarding the new issue raised by me in accordance with my invitation to counsel. In those submissions, they stated that there is no legal basis for a distinction between inmates who are lawfully detained at institutions.

[15] As well, counsel for the respondents stated that they did not have an opportunity to focus on the issue raised by me because it had not been raised by the applicants in the original material. Had it been raised, they would have delivered evidence relevant to the Charter implications of the new issue.

[16] Despite this difficulty, I am satisfied that the material before the Court contains sufficient evidence delivered by the respondents regarding the implementation of the Millennium system to enable me to make my separate disposition, limited as it is, without any prejudice to the respondents.

[17] I believe that this case presents a rare opportunity that should not be missed for this Court to consider whether inmates awaiting trial are entitled to be treated differently in some respects from those inmates who have been convicted and sentenced. It is an important issue which I hope will attract some attention and which will be considered more fully in the future in appropriate cases.

[18] In my respectful view, the law has historically often paid lip service to the presumption of innocence to which accused persons are entitled while at the same time sanctioning violations of that very sacred principle.

[19] A person charged with a crime is generally entitled to be released from custody while awaiting his trial unless his circumstances fall into one or more of the justifications contemplated by the Criminal Code, R.S.C. 1985, c. C-46, for detaining him in custody. The law, as a matter of principle, properly resists the detention of accused persons before trial.

[20] While awaiting trial, whether he is released or detained, an accused person is presumed to be innocent. There are several consequences that flow from this. One is that to the extent reasonably possible he in entitled to be treated like an innocent person whether he is detained or released. It follows that if he is detained by judicial order a serious restriction of his freedom occurs which Parliament has permitted only if one or more of the statutory grounds set out is established. That restriction of his freedom occurs whether or not the he is ultimately found guilty after a trial. It seems to me, therefore, that when an accused person is detained to await his trial, he is entitled to special treatment that will minimize the restriction of his freedom to the extent reasonably possible. Ideally, the reasons for his detention should then be used as a guideline for determining the appropriate restrictions on his rights that can be rationally justified.

[21] It is wrong in my view to regard both types of inmates with the same approach even though both are detained by judicial order. Just because an accused person has been lawfully detained to await his trial does not mean that he has been stripped of the presumption of innocence. Although detention must inevitably lead to the imposition of extensive restrictions on an accused person and the denial of some of his privileges, both should ideally be kept to a practical minimum. With respect to inmates who have been convicted and sentenced, however, a different approach can properly be justified because the restrictions and denials of privileges form part of the punishment that is being imposed.

[22] On the evidence presented in the case at bar, I am satisfied that it is wrong and unnecessary for the applicants to be treated, with respect to their access to telephones, in the same way as if they were already convicted and sentenced.

[23] Counsel for the respondents submitted that it would be impractical to establish two classes of imitates within the same institution and to grant members of one class greater privileges than those given to members of the other class.

[24] Although it may be impractical under the present organization of the correctional system, that is no answer to accused persons awaiting trial who wish to chat with their families, friends and lawyers on the telephone for extended periods. How difficult could it really be for the respondents to provide separate telephones, perhaps in separate places, for persons like the applicants? And if that is too difficult, perhaps the solution lies in restoring telephones without the obnoxious time limit to all inmates, just like before the implementation of the Millennium system.

[25] Even if it is necessary to separate accused persons awaiting trial totally from inmates who have been convicted and sentenced in order to give proper recognition to their rights, why should that not be done?

[26] Those who disagree with my view will argue that the cost of treating inmates awaiting trial differently from inmates convicted and sentenced would be prohibitive. However, if cost is the governing factor in the resolution of such issues, then it can follow that every right and freedom conferred by the Charter can be violated with impunity if the cost of its preservation is deemed by government to be too high.

February 24, 2000

[27] The judgment of the court endorsed on the record was as follows:

[28] McLean and Aston JJ.:—On the evidence presented, we are not convinced that s. 5 of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, has been violated, nor that there has been a breach of s. 2 of the Charter on the evidence of the system presented. Even if there was a breach, we find that it would be saved by s. 1 of the Charter as per Hunter v. Canada (Commissioner of Corrections), 1997 6355 (FC), [1997] 3 F.C. 936 (T.D.) per Lutfy J. The application is therefore dismissed.

[29] Application dismissed.