Date: 20020121
Docket: T-1487-99
Neutral citation: 2002 FCT 69
BETWEEN:
JACK MAURICE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
[1] While in the custody of the Correctional Service of Canada ("CSC") since 1998, the Applicant has repeatedly requested to be served a vegetarian diet. These requests have been denied on the basis that special diets are only authorized for religious beliefs or medical grounds. By this application, the Applicant challenges this denial.
[2] When the application in the present case was filed, the Applicant was an inmate in the Special Handling Unit at the Ste-Anne des Plaines correctional facility in Quebec; he is presently serving the remainder of his sentence in Alberta. In response to one of the Applicant's earlier requests, Warden Cloutier of the Quebec facility stated as follows:
You assert being actually vegetarian; we cannot consider the vegetarianism as being associated with a culture or with a religion. As far as the medical aspect is concerned, you do not meet the criteria to justify a therapeutic diet which is only available upon authorization by the institutional physician and such diets are prescribed on the basis of a diagnosis done by examination or established after diagnostic tests.
You have decided to avoid the food which is provided by our institution and we consider that this decision responds to your personal choice. Consequently, no other food or special nutritional menu will be authorized.(Applicant's Record, p.53)
Essentially, the Warden's opinion forms the content of the grievance denial under review in this application.
[1] The Applicant had previously been provided a vegetarian diet because of his membership in the Hare Krishna faith. However, in August 1998, the Applicant renounced his religious faith and continued to demand a special vegetarian diet based on his "freedom of conscience". The Applicant does not eat meat, fish, eggs, poultry, onions, mushrooms and garlic because of his conscientiously held belief that eating those food items is "morally reprehensible and poisonous to society as a whole" (Applicant's Record, p.42).
[3] The Applicant filed four grievances with the Commissioner of the CSC respecting his demand for a vegetarian diet. The grievances were denied on the basis that the Applicant does not meet the religious or medical exemption outlined in the Commissioner's Directive 880, "Food Services" ("CD880"). The reasons for the final grievance, Grievance V3000A000883, dated July 14, 1999, incorporated the previous grounds for refusal contained in Grievance No. V3000A000357 and denied the grievance on the basis that the issue had been addressed previously.
[4] The Applicant in the present application challenges the decision in the final grievance on numerous grounds including violation of his rights under the Canadian Charter of Rights and Freedoms (the "Charter"). In my opinion, it is unnecessary to deal with the full breadth of these submissions because the fundamental issue in this judicial review is whether the Applicant is entitled, as a matter of right, to a special diet; the Applicant has stated the question as "whether the rule of law obligates the CSC to provide a vegetarian diet in accommodation of an individual inmate's non-religious beliefs" (Applicant's Application Record, p.251).
[5] Religious diets are provided to inmates as mandated by the Corrections and Conditional Release legislative scheme. Section 75 of the Corrections and Conditional Release Act, S.C. 1992, c.20 (the "Act") states that inmates are entitled to reasonable opportunities to freely and openly participate in and express religion or spirituality, subject to security and safety limits. Section 101 of the Corrections and Conditional Release Regulations, SOR/92-620 (the "Regulations") further provides that the necessities required for an inmate's religion or spirituality should be made available to the inmate, including a special diet. Section 8 of CD880 also specifically stipulates that religious diets are to be provided subject only to safety and security concerns.
[6] These provisions are based on the fundamental right to freedom of religion found in the Charter. Section 2(a) states that everyone has the fundamental freedom of conscience and religion. In the Religious Diets General Guidelines, the CSC has recognized this Charter right as well as Article 18 of the Universal Declaration of Human Rights (1948) which also outlines the right to freedom of thought, conscience, and religion.
[7] In the grievance under review, the Applicant specifically requested that the CSC address the issue of whether his rights under the Charter entitle him to a vegetarian diet. The CSC refused to do so, despite the fact that, in the context of religious diets, it has recognized the application of the Charter and adjusted its procedures and policies accordingly.
[8] Thus, while the CSC has recognized its legal duty to facilitate the religious freedoms outlined in the Charter, freedom of conscience has effectively been ignored. Section 2(a) of the Charter affords the fundamental freedom of both religion and conscience, yet by the CSC's policy, inmates with conscientiously held beliefs may be denied expression of their "conscience". In my opinion the CSC's approach is inconsistent. The CSC cannot incorporate s.2(a) of the Charter in a piecemeal manner; both freedoms are to be recognized.
[9] Vegetarianism is a dietary choice, which is founded in a belief that consumption of animal products is morally wrong. Motivation for practising vegetarianism may vary, but, in my opinion, its underlying belief system may fall under an expression of "conscience".
[10] In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at 346, Dickson J. stated that the rights associated with freedom of individual conscience are central to basic beliefs about human worth and dignity, and that every individual should be free to hold and manifest whatever beliefs and opinions his or her conscience dictates. Justice Dickson further articulated the broad scope of s.2(a) as follows:
Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.
[11] Therefore, in my opinion, just as the entitlement for a religious diet may be found in s. 2(a) of the Charter, a similar entitlement for a vegetarian diet exists based on the right to freedom of conscience.
[12] This entitlement is further bolstered by the guiding principles for the CSC as outlined in the Act. Section 4(e) states that inmates retain the rights and privileges of all members of society, except those which are necessarily removed or restricted because of the sentence. Section 4(h) further stipulates that correctional programs, policies and practices should be responsive to the needs of offenders with special requirements. These broad principles reinforce the view that dietary needs based on religion or conscience should be accommodated.
[13] It is important to note that, in the context of special diets available to inmates, religious diets and vegetarian diets are closely related. The CSC Religious Diets General Guidelines indicate that, in practice, many religious diets include some form of a vegetarian menu. As a result, accommodating a vegetarian's conscientiously held beliefs imposes no greater burden on an institution than that already in place for the provision of religious diets. In fact, the guidelines reveal that the CSC has conducted the necessary research to enable it to provide properly planned and nutritious vegetarian menus. The CSC has taken positive measures to ensure that religious freedoms are protected. In my opinion, positive measures also must be taken to facilitate freedom of conscience, subject only to the same safety and security limitations that exist for accommodation of religious beliefs.
[14] For an inmate to take advantage of this finding, cogent evidence must be produced to prove the conscientious belief to a balance of probabilities. On the evidence in the present case, I have no difficulty finding that the Applicant does have a strongly held belief regarding the consumption of animal products. The Applicant's numerous requests and grievances regarding this issue, the extensive time and effort he has expended on this judicial review, as well as his sustained efforts to maintain a vegetarian diet, is strong evidence that he holds a conscientiously held belief that falls under the meaning of "conscience" under s.2(a) of the Charter. In my opinion, both the Charter and the Corrections and Conditional Release legislative scheme entitle the Applicant to a vegetarian diet.
[15] In the application material Mr. Maurice is noted as objecting to eating certain vegetarian foods, such as onions, mushrooms and garlic. However, at the hearing of the present application, Mr. Maurice specifically stated that his primary interest in bringing the application is to be served a lacto vegetarian diet while incarcerated. Upon immediately receiving instructions with respect to this very specific request, counsel for the Respondent was able to say that, if it is decided that the Applicant has a s.2(a) Charter right which has been infringed, the Respondent has no objection to meeting the Applicant's request for a vegetarian diet.
O R D E R
[16] Accordingly, I hereby set aside the decision in Grievance Number V3000A000883, and refer this matter back for redetermination in accordance with these reasons.
[17] I award the Applicant costs for his proven out of pocket expenses, which I find to be $1,560.00.
"Douglas R. Campbell"
Judge
Edmonton, Alberta
January 21, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1487-99
STYLE OF CAUSE: Jack Maurice v. Attorney General of Canada
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 21, 2002
REASONS FOR JUDGMENT : CAMPBELL, J.
DATED: January 21, 2002
APPEARANCES:
Mr. Jack Maurice,
Litigant in Person FOR THE APPLICANT
Mr. Eric Lafreniere
Department of Justice FOR THE RESPONDENT
SOLICITORS OF RECORD:
Litigant in Person FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada