[2011] 3 F.C.R. D-6
Penitentiaries
Appeal from Federal Court decision (2010 FC 747) dismissing judicial review of decision by Correctional Service of Canada (CSC) denying inmate grievance concerning validity of Institutional Standing Order 770 (ISO 770), cancellation of visiting clearance of two of appellant’s visitors—CSC Review Panel submitting report wherein visitors to penitentiaries identified as major source of drugs therein—In response to this report, CSC issuing security bulletin requiring that screening of new visitors include verification of visits to any other offender, that visitor without adequate justification for such visits be refused clearance—ISO 770 issued as visitor screening tool following CSC security bulletin—Two of appellant’s visitors identified as visiting more than one inmate—Appellant’s visitors not providing justification for these visits—Visiting clearances therefore cancelled pursuant to ISO 770 process—Applications Judge finding, inter alia, that ISO 770 lawfully enacted, consistent with Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 71(1), consistent with duty to act fairly, not violating inmates’ right to be consulted—Principal issues whether (1) applications Judge erring in finding that warden having authority to adopt ISO 770; (2) cancellation of visiting clearance contravening Corrections and Conditional Release Regulations, SOR/92‑620, s. 91(1)—Issue 1: Clear that warden able to adopt, implement ISO 770 pursuant to Act, Regulations—ISO 770 not conflicting with s. 91(1)—Any incompatibility with s. 91(1) would flow from application of ISO 770, not from adoption or terms of ISO 770—Issue 2: Appellant arguing that Regulations, s. 91(1)(a) placing onus on warden to establish risk to security before suspending visit—As a consequence, refusal to answer inquiries, lack of justification by visitor not forming basis for belief on reasonable ground that risk to security existing—Such reasoning ignoring principle in Act, s. 4(a) regarding protection of society—Protection of society including control of entry of illicit drugs in penitentiaries—Argument improperly importing into administration of federal penitentiaries, administrative decision‑making process concerning inmate visits notion of “reasonable belief” applicable in search, seizure, detention context—Absence of explanation from visitor objectively verifiable indication sustaining CSC belief on reasonable grounds that visitor jeopardizing security of penitentiary—Subject of inquiry concerning administrative action relating to secure access to penitentiary, not to matter relating to search, seizure or detention—Inappropriate to confuse administrative law concept of reasonableness with unrelated notion of “reasonable belief” applicable in search, seizure, detention context—Appeal dismissed.
McDougall v. Canada (Attorney General) (A‑338‑10, 2011 FCA 184, Mainville J.A., judgment dated June 2, 2011, 23 pp.)