T-295-92
Ken R. Crawford and Daniel Armaly (Applicants)
v.
The Warden of William Head Penitentiary, Angie
Boutin—The A & D Officer of William Head
Penitentiary and The Disciplinary Court of
William Head Penitentiary (Respondents)
INDEXED AS: CRAWFORD Y. CANADA (WARDEN OF WILLIAM
HEAD PENITENTIARY) (T.D.)
Trial Division, MacKay J.—Ottawa, July 8, 1992.
Penitentiaries — Federal penitentiary convicts convicted of
disciplinary offence for refusal to submit to being photo
graphed by new image capture system — System authorized by
Identification of Criminals Act and Order in Council — Pri
vacy Act and Access to Information Act establishing guidelines
applicable to release of information maintained by institution,
access thereto and for protection of privacy — Whether new
system introduced in accordance with existing directives not
giving rise to cause of action as Commissioner's Directives not
having force of law — Within Commissioner's administrative
authority to issue memorandum setting out practice for
photographing inmates.
Construction of statutes — Identification of Criminals Act, s.
2 providing persons in custody and convicted of indictable
offence may be subjected to processes sanctioned by Governor
in Council — Order in Council P.C. 1954-1109 sanctioning
photography for purposes of Act — New method of
photographing federal penitentiary inmates by recording
image using video camera and subsequently fixing it on photo
graphic paper still photographic process by standard diction
ary definition — Interpretation Act, s. /0 providing law consid
ered as "always speaking" — Cannot be interpreted to
preclude new technology.
Judicial review — Equitable remedies — Convicts con
victed, fined for disciplinary offence in refusing to submit to
new system of photography — Certiorari to quash disciplinary
charge inappropriate since basis therefor (order to submit to
computerized photography system) lawful — Order not arbi
trary as all other inmates at same penitentiary photographed
using new equipment — Declarations as to meaning of "photo-
graph", and requiring new directives and regulations before
new system used inappropriate — Court not to define words
apart from factual context — Court will not issue directives to
executive branch as to manner of performing responsibilities in
future.
Constitutional law — Charter of Rights — Life, liberty and
security — Following refusal to submit to new computerized
system of photography, convicts convicted, fined for discipli
nary offence — Photographing inmates within purposes of
Identification of Criminals Act not violating Charter s. 7.
Constitutional law — Charter of Rights — Equality rights —
Federal penitentiary introducing new system of photographing
convicts — Whether Charter s. 15 violated in that convicts at
other institutions not subjected to new system — S. 15 concern
ing discriminatory laws based on personal characteristics —
No such discrimination herein.
This was an application for an interlocutory injunction, cer-
tiorari and declaratory relief. The applicants were inmates
(having been convicted of indictable offences) at William
Head Institution, a federal penitentiary. They were convicted
of a disciplinary offence and fined $10 each for having refused
to be photographed by new computerized photographic identi
fication equipment, known as the "image capture system",
whereby the individual is filmed by a video camera, producing
an image on the sensitized surface of a cassette tape by the
chemical action of light. The image is stored in the computer
and subsequently printed on Kodak paper. The system is sub
ject to the requirements set out in a 1989 memorandum from
the Commissioner of Corrections dealing with the taking and
distribution of inmate's photographs. Data so obtained is not
distributed electronically. Disclosure of photographs taken by
means of this new system may only be made in accordance
with the requirements of the Privacy Act, Access to Informa
tion Act and the Identification of Criminals Act. Identification
of Criminals Act, subsection 2(1) provides that any person in
custody and convicted of an indictable offence may be sub
jected to any measurements, processes or operations sanc
tioned by the Governor in Council. Order in Council P.C.
1954-1109 sanctioned photography for the purposes of that
Act.
The applicants submitted that the new system was not
authorized by law. Their concerns related to authority for use
of the system, the absence of guidelines for protection of pri
vacy, the failure to introduce the new system in accord with
processes set out by Commissioner's Directives, breach of an
alleged duty of fairness by requiring the applicants to submit to
the new system, bias in relation to the operations of the disci
plinary court, and that the system violated the inmates' Char
ter, sections 7 and 15 rights (the latter because convicts at other
institutions in the penitentiary system were not subjected to
similar requirements).
Held, the application should be dismissed.
A declaration that the Warden lacked authority to order the
inmates to submit to the new system because it was unlawful
could not be granted. The Identification of Criminals Act and
the Order in Council authorize the use of the video image cap
ture system. Although it utilizes new technology, it still
involves a photographic process within standard dictionary
definitions. Storage on the computer does not render the sys
tem something other than a photographic process, even if it
may also permit screen display of the image and other infor
mation. The printing out of the image on paper is a part of the
photographic process. The Act and Order in Council must be
interpreted in accordance with Interpretation Act, section 10 as
"always speaking". They cannot be construed to preclude the
introduction and application of new technology.
It would be inappropriate to grant a declaration that the War
den did not have authority to store images electronically in a
computer in the absence of governing regulations. The system
is not interconnected with a network; it is subject to rules for
its security and information from it is communicated only to
those authorized to receive it by the Identification of Criminals
Act or pursuant to agreements for purposes of law enforce
ment. The Privacy Act and Access to Information Act establish
the guidelines applicable to release of the information, access
to it and for protection of the privacy of individuals about
whom the institution maintains any information.
Nor would it be appropriate to grant certiorari to quash the
disciplinary charges since the basis for the disciplinary pro-
ceedings—an order to submit to the video image capture sys-
tem—was lawful. Again, a declaration as to the meaning of
"photograph" would be inappropriate because the Court cannot
define words apart from a factual context. The officer who
ordered the convicts to submit to the video image capture sys
tem did not exceed her jurisdiction. The action was not arbi
trary. The new system had been relied upon exclusively since
January 1992 and all other William Head inmates were photo
graphed using the new equipment. The reasoning behind the
decision that fingerprinting does not infringe Charter, section 7
applied (R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387).
Photographing the applicants within the purposes of the Identi
fication of Criminals Act did not violate section 7. Charter, sec
tion 15 concerns discriminatory laws based on personal char
acteristics. There was no evidence of discrimination in that
sense. Nor can the Court issue a declaration that before the
new system is used new directives and regulations must be
drafted. The Court does not issue directives to the officers of
the executive branch of government as to how they shall per
form their responsibilities in the future.
Whether the new system was introduced in accordance with
existing directives does not give rise to a cause of action
because Commissioner's Directives do not have the force of
law. The failure to place a Commissioner's Directive relating
to provision of information in the inmate law library prior to
the introduction of the new system did not breach a duty of
fairness. The Directive did not present a new practice of any
significance. Furthermore, the Commissioner's Directives do
not confer any legally enforceable rights. Finally, it was within
the Commissioner's implied administrative authority to issue
the 1989 memorandum setting out the practice for taking pho
tographs of inmates.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 7, 15.
Federal Court Rules, C.R.C., c. 663, R. 324.
Fugitive Offenders Act, R.S.C., 1985, c. F-32.
Identification of Criminals Act, R.S.C., 1985, c. 1-1, s.
2(1).
Interpretation Act, R.S.C., 1985, c. I-21, s. 10.
Order in Council P.C. 1954-1109.
Penitentiary Service Regulations, C.R.C., c. 1251, s. 39(a)
(as am. by SOR/85-640, s. 4).
Privacy Act, R.S.C., 1985, c. P-21, s. 8.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; (1988),
55 D.L.R. (4th) 481; [1989] 1 W.W.R. 97; 71 Sask. R. 1;
45 C.C.C. (3d) 57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R.
205.
REFERRED TO:
British Columbia Telephone Company Ltd. v. The Queen
(1992), 92 DTC 6129 (F.C.A.); Friends of the Oldman
River Society v. Canada (Minister of Transport), [1992] 1
S.C.R. 3; [1992] 2 W.W.R. 193; (1992), 84 Alta. L.R.
(2d) 129; 7 C.E.L.R. (N.S.) 1; Andrews v. Law Society of
British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R.
(4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 36
C.R.R. 193; 91 N.R. 255; Martineau et al. v. Matsqui
Institution Inmate Disciplinary Board, [1978] 1 S.C.R.
118; (1977), 74 D.L.R. (3d) 1; 33 C.C.C. (2d) 366; 14
N.R. 285.
APPLICATION for interlocutory injunction, certi-
orari and declaratory relief with respect to imple
mentation of new computerized method of
photographing inmates at federal penitentiary and
resulting disciplinary measures for refusal to submit
thereto. Application dismissed.
WRITTEN REPRESENTATIONS BY:
Ken R. Crawford for applicants.
Paul F. Partridge for respondents.
SOLICITORS:
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for order rendered in
English by
MAcKAY J.: This application, filed in February,
1992, was considered pursuant to Rule 324 [Federal
Court Rules, C.R.C., c. 663] of the Court's Rules on
the basis of written submissions without personal
appearance. I dismissed the application on June 12,
1992, after consideration of the following documents:
1. The "applicants record" comprised of
a) the notice of motion filed on February 3, 1992,
b) the affidavits of Ken R. Crawford, Daniel
Armaly and Bruce Kimble, and exhibits "A" to
"K", appended to these affidavits,
c) Written Submissions—K. Crawford;
2. Record of the respondents, including:
a) affidavit of John James Costello with appended
exhibits "A" to "N",
b) affidavit of K. Helgi Eyjolfsson, with appended
exhibits "A" to "D",
c) statement of fact and law of the Attorney Gen
eral of Canada;
3. Affidavit of Daniel Armaly sworn the 22nd day of
May, 1992, with exhibits 1 to 4 appended to that affi
davit.
The following are my reasons for dismissing the
application.
Background
When the application was filed, both applicants
were in custody at William Head Institution, a federal
penitentiary, having been convicted of indictable
offences for which they were sentenced. In January,
1992, each of the applicants was directed by order of
a penitentiary officer to submit to being photo
graphed by means of computerized photographic
identification equipment, known as the image capture
system, a system that was being evaluated through a
pilot project at the institution.
Both applicants refused the order and were charged
with a disciplinary offence contrary to paragraph
39(a) of the Penitentiary Service Regulations
[C.R.C., c. 1251 (as am. by SOR/85-640, s. 4)], for
failure to obey a lawful order. On February 12, 1992,
both applicants were found guilty of disciplinary
offences by the disciplinary court . and each was
ordered to pay a fine in the amount of $10. On behalf
of the respondents it said that neither suffered any
loss of liberty as a result of the findings of the disci
plinary court, the applicant Crawford being released
on mandatory supervision on February 14, 1992, and
the applicant Armaly simply continuing to serve the
life sentence under which he was being held at the
time.
The image capture process is described as an inte
grated computer and video imaging system that pro
vides for a "picture/text data base" that can be
searched and displayed and can print pictures. On
behalf of the respondents the system is described
summarily in the following way, and there is no evi
dence to the contrary.
10. The image capture system is a photographic process. The
video camera in the process produces an image of the individ
ual on the sensitized surface of the cassette tape by the chemi
cal action of light. It is this image that is stored in the computer
and subsequently printed by the kodak printer on kodak paper
used in the development of photographs to produce a colour
photograph of the subject.
In the affidavit of John James Costello, a Unit Man
ager of the Correctional Service of Canada at the
institution, the system is further described in some
detail in the following terms:
6. As part of the evaluation of the image capture system,
inmates in custody at the William Head Institution under con
viction for indictable offences have been subjected to having
their photographs taken using the image capture system. All
inmates at the institution, apart from the applicants, Ken R.
Crawford and Daniel Armaly, (hereinafter referred to as
"Crawford" and "Armaly") have complied with the request to
be photographed.
7. The operation of the equipment in the image capture system
is described in the attached operating manual a true copy of
which is now produced and shown to me and marked as
Exhibit "C" to this my affidavit. Essentially, the principal com
ponents of this system are employed in the following manner
to generate photographs:
i. An individual is filmed by means of the Panasonic video
camera using a standard VHS video cassette tape producing
an image of the individual on the sensitized surfaces of the
cassette tape by the chemical action of light;
ii. The IBM compatible personal computer scans this photo
graphic image taken by the video camera, coding the infor
mation depicted therein, and storing it in the computer's
data base;
iii. Thereafter, the colour video printer, prints a colour photo
graph of the individual on kodak paper used in the devel
opment of photographs.
8. The aforementioned data can then be downloaded from the
IBM compatible personal computer database and stored on a
cartridge, similar to a video cassette cartridge, called an
Everex.
9. At the present time, the image capture system at the William
Head Institution is used solely for the purpose of producing
colour photographs of inmates and construction workers at the
institution for internal security purposes and in the case of
inmates for police agencies, the National Parole Board, parole
offices and supervising agencies respecting inmates on parole,
mandatory supervision or temporary absences, in accordance
with the requirements set out in a memorandum from the Com
missioner of Corrections, dated May 1st, 1989, a true copy of
which is now produced and shown to me and marked as
Exhibit "D" to this my affidavit.
10. The aforementioned photographs respecting inmates are
not transmitted by any electronic means at this time. All such
photographs are delivered only by mail or by hand. The data
obtained through the use of the IBM compatible personal com
puter in the image capture system is not distributed electroni
cally or otherwise outside of the William Head Institution at
this time.
11. Any photographs of inmates at the William Head Institu
tion taken by means of the image capture system may only be
disclosed by the Correctional Service of Canada (also known
as the Canadian Penitentiary Service) in accordance with the
requirements of the Privacy Act, R.S.C. 1985 Chap P-21 and
the Access to Information Act R.S.C. 1985 Chap A-1 and the
Identification of Criminals Act R.S.C. 1985 Chap l-1. For
example, personal information concerning an inmate in Wil-
liam Head Institution may be disclosed under agreements with
provincial governments for the purpose of administering and
or enforcing any law or carrying out a lawful investigation
pursuant to section 8(2)(t) of the Privacy Act. Now produced
and shown to me and marked as Exhibit "E" to this my affida
vit is a copy of such an agreement with the Province of British
Columbia dated the 27th day of July, 1983.
The general concerns of the applicants arising
from the order to have their photographs taken by
means of the new video image capture system, their
refusal and subsequent prosecution and conviction
for that refusal, relate to the authority for use of the
video image system, the absence of guidelines for
protection of privacy of inmates whose images are
captured by the new system, the failure of officers of
the institution to introduce the new system in accord
with processes said to be set out by institutional or
Commissioner's Directives, breach of an alleged duty
of fairness owed to the applicants by requiring them
to submit to the new video image system, an allega
tion of bias in relation to the operations of the disci
plinary court at William Head Institution, and finally,
an allegation that the video image capture system
violates section 15 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.) [R.S.C., 1985, Appendix II, No. 44]] when
other inmates in the penitentiary system are not sub
ject to similar requirements.
The basic issue giving rise to most of these con
cerns is the applicants' submission that the video
image capture system in use in the institution since
January 1992 is not authorized by law. That submis
sion I am not persuaded to accept.
Under the Identification of Criminals Act, R.S.C.,
1985, c. I-1 as amended, subsection 2(1) provides:
2. (1) Any person who is in lawful custody, charged with, or
under conviction of, an indictable offence, or who has been
apprehended under the Extradition Act or the Fugitive Offend
ers Act, may be subjected, by or under the direction of those in
whose custody the person is, to
(a) the measurements, processes and operations practised
under the system for the identification of criminals com
monly known as the Bertillon Signaletic System; or
(b) any measurements, processes or operations sanctioned
by the Governor in Council that have the same object as the
measurements, processes and operations practised under the
Bertillon Signaletic System.
By Order in Council P.C. 1954-1109 [SOR/54-325],
passed pursuant to this Act it is provided:
For the purposes of the Identification of Criminals Act, the
measurements, processes or operations of fingerprinting and
photography are hereby sanctioned.
There can be no doubt, in my view, that this Act
and the Order in Council authorize the use of the
video image capture system. No words authorize the
use of this specific equipment or of any other equip
ment for photographing and storing images or photo
graphs, not even by use of polaroid or more tradi
tional cameras, or for the storing of photographic
prints or negatives in traditional files, as was done
prior to the introduction of the new equipment. The
recording by video camera and subsequent fixing of
video images on photographic paper, though this
utilizes new technology, clearly involve a process of
producing pictures by means of the chemical action
of light on sensitive surfaces. That is a photographic
process within standard dictionary definitions. Stor
age of the image on a computer, in the process as
used on the evidence here adduced, does not render
the system something other than a photographic pro
cess, even if it may also permit screen display of the
image and other information. The printing out of the
image on paper, with or without other information, is
a part of the photographic process. In my view, the
Identification of Criminals Act and P.C. 1954-1109
are to be interpreted, in accord with section 10 of the
Interpretation Act, R.S.C., 1985, c. I-21, as "always
speaking", and they cannot be construed to preclude
the introduction and application of new technology.
(See MacGuigan J.A., in British Columbia Telephone
Company Ltd. v. The Queen (1992), 92 DTC 6129
(F.C.A.), at pages 6131-6133.)
The applicants' related concern about the absence
of guidelines for protection of privacy of those whose
images are photographed and stored does not, in the
circumstances here, give rise to issues for determina
tion by the Court. Their concern is with potential uses
of the information stored by computer and the pos
sibilities of transmission of that information. The
only evidence is that the system in use in the institu
tion is "stand-alone"; it is not interconnected with
any network; it is subject to rules for its security, and
information from it is communicated only to those
authorized to receive it by the Identification of
Criminals Act, or pursuant to agreements for pur
poses of law enforcement consistent with section 8 of
the Privacy Act, R.S.C., 1985, c. P-21. That statute
and the Access to Information Act, R.S.C., 1985, c.
A-1, together establish the guidelines applicable to
release of the information, access to it and for protec
tion of the privacy of individuals about whom the
institution maintains any information, including
information stored by computers. The general frame
work established by these Acts is applicable to any
information obtained or stored for purposes of the
Fugitive Offenders Act [R.S.C., 1985, c. F-32], as for
any other purpose for which any authority of the gov
ernment of Canada collects or maintains information
about individuals.
Application—Relief requested—Reasons for dismis
sal
The various forms of relief requested in the appli
cation are here set out in the terms included in the
notice of motion filed, with brief reasons why the
applicants' request for the particular form of relief is
dismissed.
1. An interlocutory injunction or relief thereof restraining the
respondent, A Trono, in his capacity as Warden of William
Head Penitentiary from acting beyond his jurisdiction by arbi
trarily ordering the applicants to submit to a new Computer
ized Video Image Capture System contrary to the Penitentiary
Act, the Penitentiary Rules and Regulations, Commissioners
Directives, the Mission Document, the commonlaw duty to act
fairly, The Canadian Bill of Rights and the Canadian Charter
of Rights and Freedoms pending the ruling of this Honourable
Court on the merits of this application.
Since the order of June 12 disposes of the appli
cation on its merits, this relief sought, an interlocu
tory injunction or relief in the nature thereof, pend
ing disposition of the application, is unnecessary.
No purpose would be served by an interlocutory
injunction at this stage.
2. A writ of Certiorari or relief in the nature thereof quashing
the Charges served on the applicants under Section 39(a) of the
Penitentiary Rules and Regulations by A&D Officer, Angie
Boutin, pertaining to an order she had given the Applicants to
submit to the Video Image Capture System that was not lawful
and therefore beyond her jurisdiction under the Penitentiary
Service Regulations and the Canadian Charter of Rights and
Freedoms.
3. A writ of Prohibition or relief in the nature thereof directed
to the independent Chairperson of William Head Disciplinary
Court or any other persons acting on their behalf and prohibit
ing them from proceeding in excess of or beyond their jurisdic
tion in relation to Disciplinary proceedings now pending
against the applicants in relation to the charges regarding the
Video Image Capture System, considered to be in violation of
section 39(a) of the Penitentiary Service Regulations.
Charges under paragraph 39(a) of the Peniten
tiary Service Regulations were heard and the appli
cants were determined to be guilty for which pun
ishment in the form of a fine was imposed by the
disciplinary court on February 12, 1992, well
before this application was ready for consideration
by this Court. A writ of certiorari or relief in the
nature thereof relating to the charges per se is no
longer appropriate. Even if the request for a writ of
certiorari be interpreted at this time as relating to
the proceedings of the disciplinary court, such
relief would only be considered where the basis for
those proceedings, i.e., prosecution for failure to
follow an order to submit to the video image cap
ture system, was not lawful. That conclusion is not
warranted. I am persuaded that the system here uti
lized at the institution is authorized by law and I
am not persuaded that there is any violation of the
Canadian Charter of Rights and Freedoms.
The writ of prohibition requested in paragraph 3,
directed to the independent chairperson of the dis
ciplinary court, is not appropriate relief at this
stage when that court has already dealt with the
matter.
4. A declaration determining what the term "Photograph"
means under the current Commissioner's Directives, and the
Standing Orders, pursuant to the Penitentiary Regulations for
the purposes of inmate identification.
The relief sought is not appropriate for this
Court to consider. Implicitly, it invites the Court to
consider a non justiciable issue. It is no part of a
Court's function to define words, even those used
in a statute or regulations, apart from the factual
context in which those words are sought to be
applied. Here, on the basis of the evidence
presented, the video image capture system used in
the institution, though it involves the adoption of
new technology, is, in my view, within the author
ity of the Penitentiary Service and of the institution
to adopt under prevailing statutes and regulations.
5. A declaration that the current Commissioner's Directives
only gives the Warden authority to take inmate "Photographs"
as is normally understood a photograph to be, with camera and
film, but they do not give the Warden authority to store inmate
images electronically in the memory of a computer so that they
may be retrieved and or shared at will without governing regu
lations pertaining to that medium.
The relief sought would appear to relate specifi
cally to storage of inmate images in the memory of
a computer whence they may be retrieved. The evi
dence before me indicates that the image is cap
tured by a camera and that provision is made for
printing of the image on a film. The evidence is
also that the equipment in use at the institution is
"stand alone", without means of communicating
electronically with other facilities, that the infor
mation stored in a computer permits retrieval of
both photographic and file information concerning
individuals and for the display on screen and for
the printing of that information on photographic
paper as may be required. The evidence is that
there are security standards established for protec
tion of the system and of the information stored,
and that distribution of the information is limited,
as it is in the case of information stored by other
means, for purposes established under the Identifi
cation of Criminals Act and Order in Council P.C.
1954-1109. As noted earlier the Privacy Act and
the Access to Information Act clearly provide stan
dards and criteria concerning access to the infor
mation obtained by the institution and protection
of the privacy of individuals about whom informa
tion is retained. This legislative regime establishes
standards for information retained by the Correc
tional Service, as for all other public authorities,
and for access to and distribution of that informa
tion. A declaration in the terms sought would be
inappropriate in these circumstances.
6. A declaration that the Warden of William Head Penitentiary
has no authority to arbitrarily order inmates to submit to a new
Inmate identification process known as a Video Image Capture
System because it is not legally sanctioned under current regu
lations as it has no standard or criteria regulating its potential
for arbitrary application and violations to privacy rights of
inmates.
As I have earlier indicated, my conclusion is that
the Identification of Criminals Act and P.C. 1954-
1109 do authorize use of the video image capture
system. Guidelines for the taking and distribution
of inmates' photographs were published in a mem
orandum from the Commissioner to the Correc
tional Service dated May 1, 1989 and while this
may not be a Commissioner's Directive and has no
force of law, it is a valid administrative direction
about internal procedures of the Service.
Photographing inmates in accord with that memo
randum, whether by the new equipment or by stan
dard cameras cannot be considered arbitrary where
the photographing is done for purposes within the
Identification of Criminals Act. Finally, though
there be no criteria spelled out to specifically regu
late the use of the equipment and to ensure protec
tion of privacy rights of individuals, there is no
evidence that the equipment is used for unlawful
purposes, and as pointed out, the information
obtained and retained whether through use of new
or more traditional equipment and methods is sub
ject to the protective legislative regime established
by the Privacy Act and the Access to Information
Act.
The requested declaration is not granted.
7. A declaration that Angie Boutin A & D officer of William
Head Institution acted beyond her jurisdiction ordering the
applicants to submit to the new Video Image System as it was
not a lawful order, and that she had acted unfairly when apply
ing that order to the applicants, contrary to their rights under
The Charter.
I find that the officer did not act beyond her
jurisdiction in ordering the applicants to submit to
the video image capture system. The suggestion
that this action was arbitrary because not all
inmates were required to so submit is not estab
lished for there is evidence of the respondents that
the new system was relied on exclusively at the
institution from the commencement of January,
1992, and that all other inmates aside from the
applicants herein had been photographed using the
new equipment. The suggestion that the applicants'
Charter rights were infringed is not supported by
evidence or argument. In so far as that may be seen
to relate to section 7 of the Charter, I am persuaded
that the reasoning of Mr. Justice La Forest in R. v.
Beare; R. v. Higgins, [1988] 2 S.C.R. 387, uphold
ing the practice of fingerprinting persons charged
with an indictable offence and that the practice did
not infringe section 7 of the Charter, is applicable
to the photographing of inmates incarcerated upon
conviction for indictable offences. The practice,
within the purposes of the Identification of
Criminals Act does not violate section 7. In so far
as the applicants' concern relates to section 15 of
the Charter, in that inmates of other institutions in
the Correctional Service system may not have been
required to submit to photographing by the video
image capture system, that concern does not raise
an issue in terms of section 15. That section con
cerns discriminatory laws based on personal char
acteristics enunciated, or analogous to those enun
ciated, in section 15 (see Andrews v. Law Society
of British Columbia, [1989] 1 S.C.R. 143), and
there is here no evidence or argument of discrimi
nation in that sense.
The declaration sought is not granted.
8. A declaration that before the Video Image Capture System
can be sanctioned new Directives encompassing much more
than the word "Photograph" must be applied to the regulations
and that new regulations must be drafted by CSC National
Headquarters to protect the individual's right to privacy creat
ing standards, criteria, and guidelines to cover this tools
encompassing application.
The relief requested is not granted. I have
already indicated that in my view use of the video
image capture system equipment for lawful pur
poses is authorized by the law. Even if I were not
so persuaded it is not a function of the Court to
issue directives to officers of the executive branch
of government concerning how they shall perform
their responsibilities in future, even though their
future conduct may be based on judicial decisions
critical of their past conduct. The relief here
requested does not raise a justiciable issue for this
Court.
9. A declaration that the Warden of William Head Institution
had not followed Commissioner's Directive 095 para (3) and
020 paras (11) & (12) by not introducing such a new system
according to these Directives and therefore failed to act fairly.
Commissioner's Directives do not have the
force of law giving rise to legally enforceable sta
tus or rights to third parties, even those who may
be affected by administrative actions taken pursu
ant to such directives. (See La Forest J., Friends of
the Oldman River Society v. Canada (Minister of
Transport), [1992] 1 S.C.R. 3, at pages 35-36.)
There is inference from the exchange of correspon
dence in the fall of 1991 and from the applicants'
own efforts then initiated to obtain information
about the new system that the introduction of the
new system was known and discussed before Janu-
ary 1992. Nevertheless, whether the new system
was introduced in accord with existing directives
or not, no action by the applicants relying on those
directives arises; the issue is not justiciable.
The declaration requested is not granted.
10. A declaration that under the Canadian Charter of Rights
and Freedoms and the Bill of Rights that inmates have a right
to life, liberty, security of the person and the enjoyment of
property, and that an inmate's image is his property and can
only be used for offender identification by the right of law.
The relief requested is to declare the existing
law in a general way, without application to the
evidence before the Court. That is not a function of
this Court. This raises no justiciable issue.
The declaration requested is not granted.
11. A declaration that Commissioners Directive 782 Dated Jan-
uary 10, 92 had no force and effect on the inmates of William
Head previous to January 23, 1992 because it was not placed in
the inmate law library until January 23, 92 by the librarian and
therefore could not be known by inmates to be a regulation in
effect.
The evidence presented does not indicate how
the referred document, Commissioner's Directive
782, dated January 10, 1992, is relevant to the
issues here raised. In so far as it is in evidence the
directive relates to the provision of information,
including an up-to-date photograph, concerning an
offender when information is provided to a "desti-
nation police force", concerning release of an
offender on parole or mandatory supervision. In
the absence of evidence and argument otherwise,
this would clearly seem to be within the purposes
of the Identification of Criminals Act, it would not
seem to present any new practice of significance,
and as noted above in considering item 9, Com
missioner's Directives confer no legally enforcea
ble rights upon inmates. No claim to unfairness
arising by reason of the failure, if there were such,
to place the directive in question in the inmate law
library prior to January 23, 1992, is made out on
the evidence presented by affidavits of the appli
cants.
The relief requested is not granted.
12. A Declaration that the Memorandum entitled Inmate Pho
tographs show by Exhibit "C" hereto my affidavit that was to
be in force as of May 15, 1989 as a result of the Pepino Inquiry
is not a Commissioner's Directive. That the 2 years that lapsed
between its initiation gave the Commissioner ample time to
entrench it as an Directive with a identifying number but did
not and therefore is not enforceable under the Penitentiary Act.
The relief requested concerns a memorandum,
earlier referred to, setting out practice for the Ser
vice in taking photographs of inmates on a basis
that would provide up-to-date photographs for the
Service itself, and for those to whom photographs
are supplied pursuant to the Identification of
Criminals Act and consistent with the Privacy Act.
That memorandum is not, on its face, in the form
of a Commissioner's Directive, but it is an admin
istrative direction to those responsible for adminis
tration of the Correctional Service, not to inmates,
and it is clearly within the implied administrative
authority of the Commissioner. (See Pigeon J.,
Martineau et al. v. Matsqui Institution Inmate Dis
ciplinary Board, [ 1978] 1 S.C.R. 118, at page 129.)
The declaration requested is not granted.
In addition to the specific relief requested, the
applicants submitted by affidavit that the Disciplinary
Court ought to be prohibited from proceeding
because of perceived bias. This was said to arise
because the applicant Crawford intended to initiate
legal action against the Independent Chairperson's
assistant and advisor. In the affidavit of Armaly filed
May 28, 1992, reference is also made to advice ren
dered by Paul Partridge, as counsel, to the Indepen
dent Chairperson or the Disciplinary Court concern
ing that Court's proceeding while this application for
relief in the Federal Court was outstanding. Neither
reference provides any basis for establishing bias on
the part of the Disciplinary Court. At the time of the
Disciplinary Court's proceedings no action had been
initiated by Crawford in relation to the Chairperson's
assistant; Crawford's intentions to do so do not con
stitute a basis for a reasonable perception of bias on
the part of the Chairperson at the time of the proceed
ings of the Disciplinary Court, nor does the advice
rendered by counsel to the Chairperson or the Court.
While it is not set out as a ground for relief in rela
tion to the Disciplinary Court, there appears to be a
perception that simply initiating proceedings in this,
the Federal Court, should result in suspension of
other proceedings, pending a decision of this Court.
While each tribunal, board or authority must assess
its own basis for proceeding when the basis of those
proceedings are questioned by application to this
Court, I note that this Court itself does not readily
intervene to grant an application to stay other pro
ceedings, though it has jurisdiction to do so.
Conclusion
For the reasons outlined, the various forms of
relief requested by the applicants were not granted.
The application for relief, in toto, was thus dismissed.
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