Date: 19990922
Docket: A-621-97
CORAM: DÉCARY J.A.
MacKAY J.
McDONALD J.A.
BETWEEN:
DAVID W. SHORTREED, STEVEN FORSTER AND DWIGHT CREELMAN
ON BEHALF OF THEMSELVES AND OF ALL OTHER MEMBERS OF
THE INMATE COMMITTEE OF WARKWORTH INSTITUTION,
CORRECTIONAL SERVICE OF CANADA
Appellants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, Tuesday, September 21, 1999
Judgment delivered at Toronto, Ontario on Wednesday, September 22, 1999
REASONS FOR JUDGMENT BY: McDONALD J.A.
CONCURRED IN BY: DÉCARY J.A.
MacKAY J.
Date: 19990922
Docket: A-621-97
CORAM: DÉCARY J.A.
MacKAY J.
McDONALD J.A.
BETWEEN:
DAVID W. SHORTREED, STEVEN FORSTER AND DWIGHT CREELMAN
ON BEHALF OF THEMSELVES AND OF ALL OTHER MEMBERS OF
THE INMATE COMMITTEE OF WARKWORTH INSTITUTION,
CORRECTIONAL SERVICE OF CANADA
Appellants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
McDONALD J.A.:
[1] This is an appeal by David W. Shortreed, Steven Forster and Dwight Creelman on behalf of themselves and all other members of the Inmate Committee of Warkworth Institution (the "Appellants"). The Appellants appeal a decision of the Trial Division dismissing the Appellants" application for judicial review with respect to three decisions of the Correctional Service of Canada ("CSC").
[2] These appeals were heard in Toronto, in the absence of the appellants, inmates of the Warkworth penitentiary. The appellants had expressly and on their own volition asked the Court to be dispensed from attending the hearing and to decide the appeals on the basis of their written submissions. The Court granted the appellants" request and the appeal proceeded in the presence of counsel for the respondent. Counsel informed the Court that she had nothing to add to her written submissions.
[3] The Appellants have asked for three remedies in this matter: that this Court overturn the ruling of the Trial Judge and grant the Appellants" application for judicial review; that certain CSC officials be cited for "criminal contempt of court"; and that this Court refer the matter back to the Trial Judge until a Mr. Emile Marguerita Marcus Mennes ("Mennes") makes a motion to intervene in this matter.
[4] The Appellants made no written submissions on why the Trial Judge erred in dismissing the Appellants" application for judicial review, and neither did they attend the hearing on this matter. In their original application, the Appellants alleged that CSC officials: confiscated law books; stopped publication of "Outlook", a prison newspaper; and refused to allow the Inmate Committee of Warkworth Institution to spend money on more law books.
[5] Mr. Justice Cullen examined these actions and found that the confiscation of law books was not a true confiscation because the CSC official borrowed the books to bring to the Warden and gave them back the next day. He also found that the cancellation of the newsletter was a moot issue because it was started up again six months later, and that "Outlook" violated copyright law because it was an issue with photocopies of law textbooks.
[6] The Trial Judge expressed more concern over the decision to refuse funding for more law books. In the end, however, he decided the decision was "reasonable". Although I share the Trial Judge"s concern about the whiff of capriciousness displayed by CSC officials in this decision, I am convinced the Trial Judge applied the proper legal test when he decided that the decision was "reasonable". CSC officials have a great deal of discretion when carrying out their duties; however section 97(3) of the Corrections and Conditional Release Regulations SOR/92-620 constrains this discretion by providing that:
| The Service shall ensure that every inmate has reasonable access to |
| (a) legal counsel and legal reading materials. |
| [7] Therefore, CSC officials must exercise their discretion reasonably when making decisions concerning legal reading materials. The Trial Judge, after hearing all the evidence, was convinced that the CSC officials acted reasonably. I agree. |
| [8] On the application for "criminal contempt of court" charges, the Appellants did not apply for this relief in their original applications. The Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458 stated that an appellant may raise new issues and arguments upon appeal. With respect, that ruling is not an invitation for appellants to raise new causes of relief on appeal. In any event this is not the forum to raise charges for "criminal contempt of court". |
| [9] The appeal should be dismissed. There will be no order as to costs. |
| "F.J. McDonald" |
| J.A. |
| "I agree. |
| Robert Décary J.A." |
| "I agree. |
| W. Andrew MacKay J." |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-621-97
| STYLE OF CAUSE: DAVID W. SHORTREED, STEVEN FORSTER AND DWIGHT CREELMAN ON BEHALF OF THEMSELVES AND OF ALL OTHER MEMBERS OF THE INMATE COMMITTEE OF WARKWORTH INSTITUTION, CORRECTIONAL SERVICE OF CANADA |
| Appellants |
- and -
| ATTORNEY GENERAL OF CANADA |
| Respondent |
DATE OF HEARING: TUESDAY, SEPTEMBER 21, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: McDONALD J.A. |
| CONCURRED IN BY: DÉCARY J.A., MacKAY J. |
Delivered at Toronto, Ontario
on Wednesday, September 22, 1999
APPEARANCES: No One Appearing
| For the Appellants |
Ms. Sadian G. Campbell
For the Respondent
| SOLICITORS OF RECORD: David W. Shortreed, Steven Forster and |
Dwight Creelman
c/o The Warkworth Penitentiary
| P.O. Box 760 |
Campbellford, Ontario
K0L 1L0
| For the Appellants on their own behalf |
Solicitors of Record cont"d... Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 19990922
Docket: A-621-97
BETWEEN:
| DAVID W. SHORTREED, STEVEN FORSTER AND DWIGHT CREELMAN ON BEHALF OF THEMSELVES AND OF ALL OTHER MEMBERS OF THE INMATE COMMITTEE OF WARKWORTH INSTITUTION, CORRECTIONAL SERVICE OF CANADA |
Appellants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT