Schaefler v. Canada (Solicitor General)

Schaefler v. Canada (Solicitor General) Court (s) Database Federal Court Decisions Date 2004-04-02 Neutral citation 2004 FC 517 File numbers T-1557-01 Decision Content Date: 20040402 Docket: T-1557-01 Citation: 2004 FC 517 BETWEEN:

JANOS SCHAEFLER Applicant and

SOLICITOR GENERAL FOR CANADA Respondent

REASONS FOR ORDER HARRINGTON J. [1] Mr. Schaefler is an inmate at the Bath Correctional Institute, and chairman of its Inmate Committee. The Committee had requested permission from the Commissioner of Correctional Service Canada to purchase a Public Performance License in order to show video cassettes, or DVDs, to the inmate population through the Institution's closed-circuit cable system. The request was refused, which ultimately led to a third-level national grievance. The decision at that level upheld the refusal to grant permission to purchase such a License. It was also pointed out that video recorders and video playback machines (and presumably DVD players) are not items inmates are allowed to have in their cells. This is a judicial review of that decision. [2] At the heart of the issue is the Commissioner's Directive 764 entitled: "Access to Material and Live Entertainment". One of the policy objectives thereof is to "ensure appropriate access and presentation of all material including publications, videos, audiotapes, films and computer programs and live entertainment within institutions". Some material is not permitted entry such as material providing detailed information on the fabrication of weapons or the commission of criminal acts, material which advocates or promotes genocide or hatred of identifiable groups distinguishable by colour, race, religion, ethnic

origin, sexual orientation or other traits, or sexually oriented material involving violence, coercion, etc., or sexually oriented material involving children. [3] Until February 1998, Correctional Service Canada (CSC) had a contract with a company which, upon payment of a license fee, allowed an institution access to its video collection. Videos were shown over CSC's closed-circuit cable system. This proved expensive, and it was also necessary to pre-screen the videos for acceptable content. CSC decided to terminate the contract and instead to provide entertainment through access to cable television and satellite services. [4] CSC is concerned about copyright issues. Should the inmate committee, which is not incorporated, fail to pay required royalties, it, as the custodial authority and owner of the cable system may incur liability. [5] It also has concerns with respect to the proposal that inmates be authorized to own and use personal, non-recording VCRs, again because of the possibility of inmates infringing copyright by sharing videos with other inmates, which could result in liability on its part. [6] Although not directly connected with copyright, there is some litigation involving non-payment of invoices by inmate committees, and the potential liability of CSC. I need not, and do not, base my decision on copyright issues. [7] CSC says that the applicant's proposals, if

implemented, would create additional security problems. It does not have sufficient resources to pre-screen the videos to ensure the contents do not present any danger. Furthermore, video cassettes could be used as a means of introducing contraband into the Institution and would require thorough searching. It is for those grounds that I dismiss the application. [8] The starting point is to determine whether the refusal to authorize the license or to permit inmates to have VCRs, video cassettes and DVDs in their cells is in breach of a fundamental right. I say no. The next question is whether CSC is in breach of its own Commissioner's Directives. I do not think that the decision breached Directive 764, or Directive 090 which deals with personal property of inmates. Inmates are normally permitted to retain a number of items, including television and radio sets, compact disc players and discs, record players and records, tape players and tapes in their cells. VCRs and DVDs are not mentioned. It is not for me to say whether they ought to be. [9] I conclude, therefore, that the decision under review was correct in law. Then, as an administrative decision, it must be subjected to the appropriate standard of review. It is well-established that administrative decisions which relate to public order do not constitute an abuse of discretion unless patently unreasonable. See for example,

Martineau v. Matsqui Institution, [1980] 1 S.C.R. 602, and Kelly v. Canada (Correctional Service), [1992] F.C.J. No. 720 (Q.L.). The Kelly case dealt with a decision refusing the "right" of a prisoner to be transferred from one prison to another. It was held that administrative decisions should not be interfered with unless the decision-maker clearly breached his or her duty to act fairly or if a serious injustice was committed. The decision before me was not patently unreasonable, and no serious injustice has been committed. Videos are permitted in controlled circumstances such as family visits, and cable and satellite television channels are also available. [10] Although the application is dismissed, there shall be no order as to costs. "Sean Harrington" Judge Ottawa, Ontario April 2, 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-1557-01 STYLE OF CAUSE: JANOS SCHAEFLER and

SOLICITOR GENERAL FOR CANADA PLACE OF HEARING: MONTREAL, QUEBEC DATE OF HEARING: MARCH 31, 2004 REASONS FOR ORDER : HARRINGTON J. DATED: APRIL 2, 2004 APPEARANCES: Jérôme Parenteau FOR APPLICANT Alexandre Kaufman FOR RESPONDENT SOLICITORS OF RECORD: Bernier, Parenteau FOR APPLICANT Montreal, Quebec Morris Rosenberg FOR RESPONDENT Deputy Attorney General for Canada