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T-6575-82
Robert Collin, Raynald Nadeau, Richard Corbeil, Pierre de Repentigny, inmates at the Leclerc Institution and Inmates' Committee of the Leclerc Institution, Represented by Marcel Talon in his capacity as Chairman (Applicants)
v.
The Honourable Robert Kaplan, in his capacity as Solicitor General of Canada and Donald R. Yeo- mans, Commissioner, Correctional Service of Canada (Respondents)
Trial Division, Dubé J.—Montreal, September 20; Ottawa, September 23, 1982.
Judicial review — Equitable remedies — Injunctions — Motion for interlocutory injunction directing respondents not to authorize double occupancy of cells in federal penitentiaries — Double-celling necessary as temporary measure to handle new inmates in medium-security penitentiaries — Allegations that double-celling resulting in unacceptable standards of hygiene, living space, physical and moral health, security, maintenance of order and quality of life — Applicants rely on U.N. Convention advocating single occupancy — Applicants also argue that double-celling "cruel and unusual treatment" contrary to s. 12 of Canadian Charter of Rights and Freedoms — Motion dismissed — Applicants cannot rely on U.N. Con vention because no existing federal law implementing it — No proof of cruel and unusual treatment affecting inmates — Applicants lack locus standi since double-celling will only affect new inmates — American cases discussed and distin guished — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 12.
Motion for interlocutory injunction directing respondents not to authorize double occupancy of cells in federal penitentiaries. Authorities decided to resort to double-celling of new inmates in certain medium-security institutions as a temporary measure to handle an increase in the number of prisoners until new penitentiaries are constructed. Applicants allege that the mini mum standards of detention would not be met given the size of each cell. The overcrowding problems will extend to dining rooms, gymnasiums and hallways. Questions of morality and homosexuality were also raised. Applicants relied upon a United Nations Convention, allegedly ratified by Canada in 1955 and approved in 1975 by a member of the Canadian delegation. The Convention advocated individual occupancy of cells even if reasons for double occupancy were temporary and stipulated that all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum
floor space, lighting, heating and ventilation. The applicants' second argument is that double-celling is "cruel and unusual treatment" contrary to section 12 of the Canadian Charter of Rights and Freedoms.
Held, the motion is dismissed. The first submission fails because there is no existing federal law giving effect to the United Nations Convention. As to the second argument, there are no decisions on what constitutes cruel and unusual punish ment in Canada. However, the United States Constitution provides protection against cruel and unusual punishments. In the absence of Canadian precedents in this area, it would be incautious not to give some thought to the work of American jurists. In a recent American case, two prisoners who were double-celled obtained an injunction, but the decision was reversed by the Supreme Court of the United States. The Supreme Court defined "cruel and unusual" as including not only "barbaric physical punishments" but also the "unneces- sary and wanton infliction of pain ... totally without penologi- cal justification". These terms are to be defined in accordance with "standards of decency that mark the progress of a matur ing society". The lower court based its order on five consider ations: the prisoners were serving long terms of imprisonment, the prison housed 38% more prisoners than its capacity, con temporary standards dictate that a prison inmate should have at least 50 to 55 square feet of living quarters, a prisoner who is double-celled will spend most of his time in the cell with his cellmate, and the prison had made double-celling a practice and it was not a temporary condition. Double-celling in Canadian institutions will create similar problems. However, two of the five factors considered by the American Court do not apply here as the prisoners are serving time in a medium-security penitentiary and the double-celling will be temporary. In these circumstances and in the absence of any proof of cruel and unusual treatment or punishment, the Court should not inter vene. Applicants have no locus standi since the double-celling does not affect them directly in that this arrangement will apply only to new inmates.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Rhodes, Governor of Ohio, et al. v. Chapman et al., 452 U.S. 337, 69 L Ed 2d 59, 101 S. Ct. 2392 (1981).
REFERRED TO:
Forget v. Kaplan (1981), 2 C.H.R.R. D/441 (F.C.T.D.); Grand Council of the Crees (of Quebec) v. The Queen, [1982] 1 F.C. 599 (C.A.).
COUNSEL:
Francine Paquette for applicants. Jacques Ouellet, Q.C. for respondents.
SOLICITORS:
Paquette, Jones & Associates, Montreal, for applicants.
Deputy Attorney General of Canada for respondents.
The following is the English version of the reasons for order rendered by
Dust J.: This motion asks the Court to issue an interlocutory injunction directing respondents not to authorize double occupancy of cells in federal penitentiaries, and in particular in the Leclerc Institution. Another motion heard concurrently concerns the Laval Federal Training Centre. By consent, the same decision will apply to both motions.
It appeared that in order to handle a significant increase in the number of inmates, the authorities of the Correctional Service of Canada have decid ed to resort to double-ceiling in certain medium- security institutions, including the Saskatchewan Penitentiary and the Stoney Mountain and Drum- heller Institutions, all three located in the western provinces, and the two aforesaid institutions in Quebec. According to the affidavits filed by respondents, this temporary measure is designed to cope with the situation until other penitentiaries, currently under construction at Renous in New Brunswick and at Donnacona and Drummondville in Quebec, are ready to receive inmates. Other penitentiaries are also being renovated at various locations in Canada.
Applicant inmates alleged that their rights have been directly and adversely affected by this deci sion to impose double-celling on them.' They con tended that the result of implementing this deci sion would be to fall below the minimum acceptable standards for detention, particularly with regard to standards of hygiene, living space, physical and moral health, security, the mainte nance of order and the quality of life in general. In
' The transcript of the meeting between the authorities and the Inmates' Committee (minutes of June 16, 1982) states that "double cells will be occupied by newly arrived inmates".
their submission, overcrowding in these penitenti aries will result in lowering productivity in various inmate activities, such as work, education, recrea tion and training. From the layout of the ordinary cell in the Leclerc Institution, they maintained, it is apparent that only bunk beds could be used, which means that the inmate occupying the top bed will suffer hardship from the air vents located in the ceiling. The ordinary individual cell in the Leclerc Institution measures 11 ft. 6 ins. by 6 ft., or about 69.6 square feet. They alleged that double occupancy of such a narrow cell is unacceptable, unfair, unreasonable, cruel and unusual and does not comply with the rules of equity.
To begin with, applicants cited a United Nations Convention ratified by Canada in 1955: this Convention was allegedly approved in 1975 by a member of the Canadian delegation. 2 The fol lowing two articles of this Convention are repro duced in the motion as follows:
9.1 Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all require ments of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
Counsel for the applicants was however unable to cite any Canadian statute or Order in Council giving effect to the said Convention or either of the two articles cited above. This allegation therefore cannot be the basis for any entitlement to an order for an interlocutory injunction by this Court.
Applicants' second argument rests on an authen tically Canadian basis, which is fundamental to the protection of the rights and freedoms of Canadians: the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act,
2 The statement by the Canadian delegate, J. R. Boyce, filed at the hearing, indicates Canada's approval of the Standard Minimum Rules of the United Nations in their entirety and its intention to "submit them to Ministers and Deputy Ministers for implementation".
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.). Applicants cited sections 1, 7 and 12, but it is really in section 12 that their hopes for protection against this decision to adopt double- celling may lie, if such a system in fact constitutes "cruel and unusual treatment". The section reads as follows:
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Does this case involve "cruel and unusual treat ment or punishment"? The cell plans filed in support of the motion show clearly that there is not sufficient space for two beds and that a second bed would have to be placed over the first. It is quite clear that living space, which is already very lim ited, will be even more so with the arrival of a second occupant. Obviously, two inmates placed in such a narrow room cannot have the same degree of comfort as a single inmate. The problems that double-celling will create can easily be imagined, and there may be others as well: the lack of space for personal items, difficulties in maintaining health standards, tension between the two inmates in the event of a conflict of personalities. Addition ally, overcrowding will have effects elsewhere in the institution and will overflow into dining rooms, gymnasiums, hallways and so on where space will be at a premium. The written motion does not raise the question of morality and homosexuality, but counsel for the applicants mentioned this in his oral arguments.
All these problems are noted, not only in the affidavits of applicants, but also in the affidavit of the President of the Union of Solicitor General Components at the Leclerc Institution (the guards' union).' In the submission of this employee, major problems of all kinds will result from double-cell- ing. He stated that the schools and industries in the penitentiary are operating at full capacity: they are already congested. In his view, the dining room, the cinema, the gymnasium and the class rooms are now inadequate to accommodate the existing population. The cells consist of four solid walls and have no bars, which further limits venti-
3 None of these sworn statements was contradicted and none of the persons making them was cross-examined.
lation. There is no air conditioning. The President of the Union also feared repercussions in violence and riots.
I think it is apparent, therefore, that however temporary the double occupancy of these cells may be, it is not to be recommended. However, the Court is not responsible for administering Canadi- an penitentiaries. What I must decide here is whether this proposed double-celling entitles appli cants to an interlocutory injunction. In other words, does double-celling constitute cruel and unusual treatment or punishment against which the inmates are entitled to protection under section 12 of the Charter?
The Charter is in its infancy and there have not so far been any decisions on the matter in Canada. The U.S. Constitution, on the other hand, has been in existence for many years; and the Eighth and Fourteenth Amendments provide protection against "cruel and unusual punishments". In a recent case 4 two prisoners who were double-celled in an Ohio prison obtained an injunction in the District Court against the Governor of the State: this order was affirmed by the Court of Appeal for the Sixth Circuit. The lower court based its order on five considerations. First, the prisoners were serving long terms of imprisonment. Second, the prison housed 38% more prisoners than its capaci ty. Third, contemporary standards dictate that a prison inmate should have at least 50 to 55 square feet of living quarters, as compared with the 63 square feet which the double-celled inmates shared. Fourth, a prisoner who is double-celled will spend most of his time in the cell with his cellmate. Fifth, the prison had made double-celling a prac tice and it was not a temporary condition.
The Supreme Court of the United States reversed this decision (Marshall J. dissenting). At the outset, the Court attempted to define the phrase "cruel and unusual", and did so "in a flexible and dynamic manner" [at page 68]. The phrase goes beyond "barbaric physical punish
4 Rhodes, Governor of Ohio, et al. v. Chapman et al., 452 U.S. 337, 69 L Ed 2d 59, 101 S. Ct. 2392 (1981).
ments" and includes the "unnecessary and wanton infliction of pain ... totally without penological justification" [at page 68]. These terms are to be defined in accordance with "standards of decency that mark the progress of a maturing society" [at page 68]. The Court reviewed certain unfortunate situations that once prevailed in certain prisons in the South of the United States, where the condi tion of prisoners became vile and degrading. It concluded that the five foregoing considerations on which the District Court relied in issuing its injunction were "insufficient to support its consti tutional conclusion" [at page 70]: at most, these considerations amounted to a theory that double- celling inflicts a punishment. The Court noted that the U.S. Constitution does not mandate comfort able prisons. It indicated the goals of the penal function in the criminal justice system as follows: "to punish justly, to deter future crime, and to return imprisoned persons to society with an improved chance of being useful, law-abiding citi zens" [at page 72].
The Supreme Court concluded that, in the abstract, the District Court might be right in finding that overcrowding and double-ceiling in general caused serious hardship to prisoners; but it noted that cases are not decided in the abstract and that the five considerations of the District Court were insufficient to support the injunction sought.
I am of course not bound by this decision of the highest U.S. Court; but in the absence of any
precedents in this area in Canada as the Canadi- an Charter is still in its infancy—it would be to say the least incautious not to give some thought to the work of our brother jurists to the south who have worked with their Constitution for many years and applied it to situations that have arisen in the U.S., situations which are often similar to our own. Double-celling in the two Canadian insti tutions will certainly create problems of the same kind in Canada. However, it should be noted that two of the five considerations of the U.S. lower Court do not apply here. First, the prisoners in question in Canada are serving time in a medium-
security institution. Second, in Canada the double- celling will be temporary, whereas in the max- imum-security prison in Ohio it was permanent. Clearly, these two distinctions make the allega tions of this motion even less sufficient to support the making of the order sought.
I accordingly find as follows:
1. In principle double-celling in the two Canadi- an penitentiaries is not to be recommended.
2. Since the situation will be temporary, and in the absence of any actual proof of cruel and unusual treatment or punishment affecting the inmates, the Court should not intervene.
3. The applicants on the motion at bar have no locus standi in this matter, since the double-cell- ing does not affect them directly: if it occurs, double-celling will apply only to new inmates.
4. This order does not exclude the possibility of a further motion for an injunction, once the double-celling system has been introduced in the cells: the inmates affected will then have to prove that this situation constitutes "cruel and unusual treatment or punishment" of them.
5. Such a motion for an injunction should not be brought against the Minister (see Forget v. Kaplan (1981), 2 C.H.R.R. D/441 (F.C.T.D.) and the Grand Council of the Crees (of Quebec) v. The Queen, [1982] 1 F.C. 599 (C.A.)).
The motion will accordingly be dismissed, but in the circumstances without costs.
ORDER
The motion is dismissed without costs.
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