Lord v. Canada

Lord v. Canada
Court (s) Database
Federal Court Decisions
Date
2001-04-26
Neutral citation
2001 FCT 397
File numbers
T-1354-97
Decision Content
Date: 20010426
Docket: T-1354-97
Neutral Citation: 2001 FCT 397
BETWEEN:
DAVID WILLIAM LORD
LORRAINE ELOUISE LORD
VERA HANNAH LORD
CORALEE REBECCA LORD
DAWN ANDREA LORD
DERIK CHRISTOPHER LORD
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
BLAIS J.
[1] The plaintiffs brought an action by way of a statement of claim against the defendant for damages suffered as a result of an incident that occurred at Kent Institution in British Columbia.
FACTS
[2] The plaintiff, Derik Christopher Lord ["Derik Lord"], was an inmate of Kent Institution in British Columbia on May 27, 1997. The five other plaintiffs are members of Derik Lord's family. David William Lord ["David Lord"] is Derik Lord's father, Lorraine Elouise Lord ["Elouise Lord"] is Derik Lord's mother, Coralee Rebecca Lord ["Coralee Lord"] and Dawn Andrea Lord ["Dawn Lord"] are Derik Lord's sisters and Vera Hannah Lord ["Vera Lord"] is Derik Lord's grandmother.
The private family visiting program and the visual count procedure
[3] While an inmate at Kent Institution [the "Institution"], Derik Lord was involved in the private family visiting program which was in place at the Institution. The program sought to support the development and delivery of family programs in the Institution and to provide inmates with the opportunity to use separate facilities where they could meet privately with their family to renew or continue personal relationships.
[4] Thus, on May 27, 1997, the plaintiffs were participating in a private family visit at the Institution. The visit was supposed to terminate on May 30, 1997.
[5] At the time, a new visual inspection policy was in place at the Institution. The policy required the visitors and the inmate to make contact with the Institution staff four times a day in order for the staff to proceed to a visual count of the visitors.
[6] David Lord objected to this new visual inspection policy and refused to be submitted to the visual count. This lead to an argument between David Lord and the correctional supervisors at the Institution.
[7] Since David Lord refused to comply with the visual count policy, the private family visit for Derik Lord was cancelled on May 28, 1997. The events relating to the termination of the visit will be discussed later in these reasons.
Hearing before the Visits Review Board
[8] A Visits Review Board meeting was held on June 4, 1997 where Derik Lord was able to make representations on the continuation of visit suspensions. No other family members were permitted to attend or to speak at the meeting. According to the defendant, the Visits Review Board first hears submissions of the inmate, and at a separate hearing, the Visits Review Board hears submissions from any other visiting person.
[9] On June 11, 1997, a hearing was held before the Visits Review Board where the plaintiffs were given an opportunity to appear and make submissions regarding the continuation of visit suspensions. Each plaintiff was given written notice of the review hearing and was told that a decision would be made on that date as to the continuation of visit suspensions. Due to the distance most visitors live from the Institution, only David Lord and Elouise Lord were able to make verbal presentations on the short notice. Elouise Lord was able to present a letter from Coralee Lord, verbal presentations on behalf of the other visitors, and herself, and received some feedback on the recommendations of the case management team in regards to her own visits only.
[10] At the hearing, David Lord presented his personal view on the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, ["Charter"] and other legislation. David Lord was asked to confine his remarks to his visits with his son. It was explained to him that legal arguments concerning the Charter could only be decided by a court of law.
[11] On June 13, 1997, the plaintiffs were informed that the Visits Review Board had decided to recommend continued private family visits for Elouise and Dawn Lord. It decided to allow Vera Lord open visits only and to suspend visits for David and Coralee Lord. All plaintiffs were advised in writing of the decisions regarding visiting privileges.
[12] Elouise Lord wrote to the Institution on September 24, 1997, requesting clarification as to whether David Lord and Coralee Lord would be permitted visiting privileges following the original six months suspension.
[13] In a letter dated October 7, 1997, the deputy warden, Doug Richmond, indicated that the suspension would be lasting longer than the six months that were originally imposed.
THE APPLICANT'S POSITION
[14] The plaintiffs submit that the Correctional Service of Canada's treatment of visitors during the termination of the private family visit at the Institution on May 28, 1997 was arbitrary and done without permitting a fair hearing to all involved. The plaintiffs allege that it was done in violation of section 52 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3 ["Constitution Act"] and in violation of sections 1, 2, 7, 12 and 15 of the Charter.
[15] The plaintiffs further contend that the termination of the private family visit at the Institution on May 28, 1997 was done in violation of sections 3, 4, 5, 69, 71, 76 and 91 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, and in violation of sections 2, 3, 4 and 66 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[16] The plaintiffs contend that part of the duty to act fairly is to inform visitors, prior to the visit, of the rules and regulations that are to be followed. The plaintiffs admit that the policies and procedures were outlined for some of the plaintiffs during the community assessments for participation in the program. However, the plaintiffs contend that some of the policies and procedures had since been changed and that there had been no notification, no advance warning given for these changes. Also, some of the plaintiffs did not have a community assessment done, as a result, they did not get the overview of the policies and procedures.
[17] The plaintiffs also submit that the termination of the private family visit was done in violation of section 279.1 of the Criminal Code, R.S.C. 1985, c. C-46 and that by demanding that Derik Lord's family give up their rights and freedoms under the Charter in order to continue with visits and private family visits at the Institution, Derik Lord is held hostage until his family complies. The plaintiffs contend that David Lord and Coralee Lord's rights under the Charter continue to be violated since they are not allowed to see Derik Lord. The plaintiffs allege that the continued suspension of visits for two of the plaintiffs continues the emotional trauma and hardship.
[18] It is submitted that the manner in which the visitors were thrown out without being permitted to pack their belongings was done with unnecessary force and roughness leading to emotional shock and trauma for all the plaintiffs. Elouise Lord was taken by ambulance from the Institution to the hospital because of the trauma and Vera Lord's age predisposes her to ill effects from severe emotional trauma.
[19] The plaintiffs' position is that the house that they occupied for the private family visit was their residence for the seventy-two hours of the visit and that the guards had no legal right to enter their residence. No warrant was ever presented nor was there any indication of the potential of harm occurring to any one present.
[20] The plaintiffs submit that throughout the entire incident, all aggression, in the form of verbal threats and then finally a physical assault, was from the staff of the Institution. The plaintiffs contend that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The plaintiffs submit that their liberty and security of person were violated every time they were forced to go outside and be counted by a guard.
[21] The plaintiffs further contend that David Lord was subjected to cruel and unusual treatment or punishment when he was forced to get up in the morning and go outside to be counted. Since he was working a steady night shift, he was accustomed to sleeping to about 11:00 a.m. every day.
[22] It is submitted that the Institution charged, tried, convicted and sentenced Vera Lord of assault without once presenting the charges in court. The plaintiffs allege that the Correctional Service of Canada violated Vera Lord's rights under subsection 11(d) of the Charter and breached their duty to act fairly. Vera Lord was not made aware of the allegations made against her in any manner previous to the meeting or to communication of the decision being made. She was not given the opportunity to refute the allegations made against her. Vera Lord was only advised of the allegations by letter dated June 13, 1997 and written by Diane Knopf of the Institution, that the Institution viewed her behaviour on May 28, 1997, involved the assault of an officer.
[23] The plaintiffs submit that the visual count procedures have been followed in an arbitrary manner since the incident which lead to this action. In particular, Elouise Lord has participated in private family visits in which the counts were not done according to the schedule set out in the house. The counts were done occasionally, or not at all. This was brought to the attention of the Institution staff and to Correctional Service staff in Ottawa and the response was that there was no record kept for these counts. The plaintiffs wonder why, if the counts of visitors are so unimportant, the incident occurred. The plaintiffs submit that the incident occurred because of prejudice against the plaintiffs and solely to break the family ties which the visits are meant to maintain.
[24] The plaintiffs therefore claim:
a) Costs for the trip to the hospital for Elouise Lord;
b) Damages for the emotional trauma caused by the ending of the visits;
c) Damages for the emotional shock and trauma caused by the continued suspension of visits;
d) Damages for loss of family support and weakening of ability to maintain family ties;
e) Damages for discrimination showed in the methods used to terminate the visit;
f) Damages for loss of reputation due to the articles in the press;
g) Relief in the form of Court direction that the Institution be told to revamp the orders and rules made in order that they be made to comply with the law of Canada, specifically, the Constitution Act, section 52, Canadian Charter of Rights and Freedoms, sections 1 and 2, Corrections and Conditional Release Act, sections 1, 2, 3, 4, 5, 9, 38, 39, 40, 41, 69, 71 and 76, Canadian Human Rights Act, sections 2, 3, 5 and 66 and section 279.1 of the Criminal Code;
h) Relief in the form of Court direction to stop all further discriminatory procedures currently being followed in regards to visitors.
THE DEFENDANT'S POSITION
[25] The Commissioner's Directive (CD) No. 770 sets out a requirement to establish procedures for regular contact by Institution staff with an inmate and his family during private family visit. The Institution developed a visual inspection policy in consultation with inmate representative which minimizes intrusiveness while ensuring the safety of visitors and the security of the institution.
[26] According to the defendant, prior to any private family visit, the plaintiffs were the subject of a community assessment. The purpose of the community assessment was to assess the eligibility of the plaintiffs for participation in the private family visiting program. During the community assessment the policies governing the private family visits were explained to the plaintiffs. The defendant submits that the plaintiffs were given adequate notice of the visual count policy during private family visits. A notice concerning the visual inspection policy was placed in each private family visiting unit in clear view. The officer conducting the count explained the process. The correctional supervisor later explained the procedure in detail.
[27] The defendant alleges that the plaintiffs were given written notice of the hearing before the Visits Review Board and that during the review, the relevant law and policies were again explained to the plaintiffs. The defendant submits that the plaintiffs were given an opportunity to appear and make submissions.
[28] The defendant specifically denies that the plaintiffs are entitled to any relief claimed and denies that the plaintiffs suffered damages as alleged or at all and puts the plaintiffs to the strict proof thereof.
ISSUES
[29] In their pleadings, the plaintiffs submitted the following questions to the Court:
Relating to the visual inspection policy
1. Does the visual inspection policy in place at the Institution infringe sections 1, 2, 7, 12 and 15 of the Charter?
2. Is the visual inspection policy in place at the Institution contrary to sections 3, 4, 5, 69, 71, 76 and 91 of the Corrections and Conditional Release Act?
3. Is the visual inspection policy in place at the Institution contrary to sections 2, 3, 4 and 66 of the Canadian Human Rights Act?
4. Did the defendant breach its duty to act fairly in failing to inform visitors, prior to their visit, of the rules and regulations that are to be followed during the private family visit at the Institution on May 28, 1997?
5. Was David Lord subjected to cruel and unusual treatment or punishment when he was forced to get up in the morning and go outside to be counted since he was working a steady night shift, he was accustomed to sleeping to about 11:00 a.m. every day?
Relating to the termination of the Private Family Visit
6. Did the Correctional Service of Canada have a duty to give a fair hearing to the plaintiffs before terminating the private family visit at the Institution on May 28, 1997?
7. Did the Institution charge, try, convict and sentence Vera Lord of assault without giving her the opportunity to refute the allegations made against her?
8. Was the house occupied by the plaintiffs during the private family visit their residence for the seventy-two hours of the visit and did guards have the right to enter their residence? Was a warrant needed?
9. Was the termination of the private family visit at the Institution on May 28, 1997 done in violation of section 52 of the Constitution Act and in violation of sections 1, 2, 7, 12 and 15 of the Charter.
10. Was the termination of the private family visit at the Institution on May 28, 1997 done in violation of sections 3, 4, 5, 69, 71, 76 and 91(1) of the Corrections and Conditional Release Act?
11. Was the termination of the private family visit at the Institution on May 28, 1997 done in violation of sections 2, 3, 4 and 66 of the Canadian Human Rights Act?
12. Was the termination of the private family visit done in violation of section 279.1 of the Criminal Code of Canada?
13. Were David Lord and Coralee Lord's rights under the Charter violated by the continued suspension of visits?
14. Was the manner in which the plaintiffs were made to leave, without being permitted to pack their belongings, done with unnecessary force and roughness? If so, did the plaintiffs suffer damages?
[30] In my view, issues raised by questions 8 and 12 are frivolous and do not deserve a detailed answer. Suffice it to say that the plaintiffs could not succeed on these issues.
[31] As for questions 9, 10, 11, they are addressed by other questions and it is not necessary to address them separately.
[32] Therefore, the following questions will be answered in this judgment:
Relating to the visual inspection policy
1. Does the visual inspection policy in place at the Institution infringe sections 1, 2, 7, 12 and 15 of the Charter?
2. Is the visual inspection policy in place at the Institution contrary to sections 3, 4, 5, 69, 71, 76 and 91 of the Corrections and Conditional Release Act?
3. Is the visual inspection policy in place at the Institution contrary to sections 2, 3, 4 and 66 of the Canadian Human Rights Act?
4. Did the defendant breach its duty to act fairly in failing to inform visitors, prior to their visit, of the rules and regulations that are to be followed during the private family visit at the Institution on May 28, 1997?
5. Was David Lord subjected to cruel and unusual treatment or punishment when he was forced to get up in the morning and go outside to be counted since he was working a steady night shift, he was accustomed to sleeping to about 11:00 a.m. every day?
Relating to the termination of the Private Family Visit
6. Did the Correctional Service of Canada have a duty to give a fair hearing to the plaintiffs before terminating the private family visit at the Institution on May 28, 1997?
7. Did the Institution charge, try, convict and sentence Vera Lord of assault without giving her the opportunity to refute the allegations made against her?
8. Were David Lord and Coralee Lord's rights under the Charter violated by the continued suspension of visits?
9. Was the manner in which the plaintiffs were made to leave, without being permitted to pack their belongings, done with unnecessary force and roughness? If so, did the plaintiffs suffer damages?
ANALYSIS
The visual inspection policy
[33] The Institution's duty to adopt a visual inspection policy is found under the Commissioner's Directive No. 565 made pursuant to the Corrections and Conditional Release Act, which regulates contacts and visits for an inmate in a penitentiary.
[34] Subsection 71(1) of the Corrections and Conditional Release Act reads:
Contacts and visits
71. (1) In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.
Rapports avec l'extérieur
71. (1) Dans les limites raisonnables fixées par règlement pour assurer la sécurité de quiconque ou du pénitencier, le Service reconnaît à chaque détenu le droit, afin de favoriser ses rapports avec la collectivité, d'entretenir, dans la mesure du possible, des relations, notamment par des visites ou de la correspondance, avec sa famille, ses amis ou d'autres personnes de l'extérieur du pénitencier.
[35] Section 97 of the Corrections and Conditional Release Act states that the Commissioner is entitled to make rules:
Rules
97. Subject to this Part and the regulations, the Commissioner may make rules
(a) for the management of the Service;
(b) for the matters described in section 4; and
(c) generally for carrying out the purposes and provisions of this Part and the regulations.
Commissioner's Directives
98. (1) The Commissioner may designate as Commissioner's Directives any or all rules made under section 97.
Accessibility
(2) The Commissioner's Directives shall be accessible to offenders, staff members and the public.
Règles d'application
97. Sous réserve de la présente partie et de ses règlements, le commissaire peut établir des règles concernant:
a) la gestion du Service;
b) les questions énumérées à l'article 4;
c) toute autre mesure d'application de cette partie et des règlements.
Directives du commissaire
Nature
98. (1) Les règles établies en application de l'article 97 peuvent faire l'objet de directives du commissaire.
Publicité
(2) Les directives doivent être accessibles et peuvent être consultées par les délinquants, les agents et le public.
[36] The Commissioner's Directive No. 565 indicates:
POLICY OBJECTIVE
1. To exercise safe, secure and humane control of inmates by verifying their presence and well-being through the use of a system for counting inmates.
INSTITUTIONAL RESPONSIBILITY2. Each institution shall have a system for counting inmates detailed in its Standing Orders.
3. Staff members in charge of inmates shall be able to account for those inmates at all times.
FORMAL COUNTS
4. The institution's Standing Orders shall make provision for formal counts, which require the counting of each inmate individually. During such counts there shall be no inmate movement allowed. An official record of these counts shall be maintained.
5. In medium and maximum security institutions, a minimum of four formal counts shall be conducted during each 24 hour period. In all other institutions, there shall be at least two formal counts every 24 hours.
6. Institutions shall conduct formal visual counts of inmates and their visitors occupying private family visiting units at the same frequency as is required for inmates in the main institution.
OBJECTIF DE LA POLITIQUE
1. Exercer un contrôle à la fois humain, sûr et sans risque sur les détenus en s'assurant de leur présence et de leur bien-être par le biais d'un système de dénombrement des détenus.
RESPONSABILITÉS DE L'ÉTABLISSEMENT
2. Chaque établissement doit décrire en détail dans ces ordres permanents un système de dénombrement des détenus.
3. Les employés chargés des détenus doivent savoir en tout temps où ceux-ci se trouvent.
DÉNOMBREMENTS OFFICIELS
4. Les ordres permanents de l'établissement doivent prévoir la tenue de dénombrements officiels où chaque détenu est compté. On ne doit pas permettre aux détenus de se déplacer pendant ces dénombrements dont il faut consigner officiellement les résultats.
5. Il faut prévoir, dans les établissements à sécurité moyenne et maximale, au moins quatre dénombrements officiels au cours d'une période de 24 heures et, dans tous les autres établissements, au moins deux dénombrements officiels au cours d'une même période.
6. Les établissements doivent procéder au dénombrement officiel et visuel des détenus et de leurs visiteurs occupant les unités de visites familiales privées à la même fréquence qu'ils doivent le faire pour les détenus dans l'installation principale.
1. Does the visual inspection policy in place at the Institution infringe sections 2, 7, 12 and 15 of the Charter?
[37] Sections 2, 7, 12 and 15 of the Charter reads as follow:
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
2. Chacun a les libertés fondamentales suivantes :
a) liberté de conscience et de religion;
b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication;
c) liberté de réunion pacifique;
d) liberté d'association.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
12. Chacun a droit à la protection contre tous traitements ou peines cruels et inusités.
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
SECTION 2
[38] Regarding section 2 of the Charter, the plaintiffs argue that the visual inspection policy infringed their right to freedom of association under subsection 2d) of the Charter.
[39] David Lord has made this argument before the British Columbia Supreme Court and Court of Appeal when he appealed his conviction of trespass (R. v. Lord, [1998] B.C.J. No. 2306 (S.C.); [1998] B.C.J. No. 2963 (C.A.).).
[40] In those cases, David Lord argued that the count policy violated his right of association.
[41] The British Columbia Supreme Court held:
In terms of the "rights" issue advanced by the accused whether visitation is a right or a privilege, it is always subject to reasonable regulations and rules established by the appropriate prison authority.
Much law has been cited by the accused and I have not overlooked any of the case. He was representing himself. He conceded that rules are necessary and that visitors must obey rules provided they are reasonable. That brings this case down to only one issue: was the rule that a visitor must "stand to" a reasonable rule.
[...]
I agree with the trial judge that the Standing Order, requiring visitors to "stand to" and be counted while occupying a family unit is not something that can be said to violate the accused"s right of association
The rule in the warden's view (and I do not disagree) is not an unreasonable rule, and it is one, visitors must be prepared to obey.
[42] The Court of Appeal, in dismissing the appeal, stated:
Having read and considered the appeal judge's reasons I am unable to find that he assigned greater importance to the Standing Order than to the Charter. His decision is simply that the circumstances do not engage Mr. Lord's Charter rights.
Even if it could be said that the Charter issues raised by Mr. Lord are questions of law alone, I do not think that they are matters of general importance. The facts are highly unusual and unlikely to occur again. The connection with the Charter is, in my opinion, highly tenuous and a decision on the points raised by Mr. Lord are unlikely to be of much general interest.
[43] In these cases, the courts did not undertake the Charter analysis since they found that the rule was reasonable, thus, the Charter analysis was unnecessary.
[44] Nevertheless, I am ready to analyse this Charter issue. It seems generally recognized that freedom of association under subsection 2d) of the Charter does not include the parent/child relationship.
[45] In Downes v. Canada (MEI) (1986), 4 F.T.R. 215 (T.D.), McNair J. held:
Re Gittens and The Queen (1982), 137 D.L.R. (3d) 687 (F.C.T.D.) was the case of an application by a citizen of Guyana for an interlocutory injunction to restrain the execution of a deportation order made against him under the Immigration Act, 1976. One of the arguments pressed in support of the application was "freedom of association" under s. 2(d) of the Charter.
Mr. Justice Mahoney disposed of this argument at pp. 691-92:
Freedom of association, as invisaged by s. 2(d) of the Charter, will not be violated by execution of the deportation order. The applicant's deportation will sever immediate links with family, friends and others. To the extent that they are licit associations, they are social and familial. Assuming that they are the type of association contemplated by s. 2(d), freedom of association is guaranteed, as provided in s. 1 of the Charter, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Execution of the deportation order is prescribed by law. The reasonableness of the right of a free and democratic state to deport alien criminals is self-evident and, therefore, demonstrably justified.
I hasten to add that the reference to "alien criminals" has no application whatever to the senior applicant, who is by any acceptable standard a responsible and loving parent.
Public Service Alliance of Canada v. The Queen, [1984] 2 F.C. 889 (F.C.A.) was an appeal from a judgment at trial dismissing the appellant's action for a declaration that certain statutory provisions applicable to the public service were invalid, inter alia, because they abridged the right to freedom of association guaranteed by s. 2(d) of the Charter. The court dismissed the appeal on this issue on the ground that the right to bargain collectively was not guaranteed by s. 2(d). Mahoney, J., said at p. 895:
The right of freedom of association guaranteed by the Charter is the right to enter into consensual arrangements. It protects neither the objects of the association nor the means of attaining those objects.
(Emphasis added)
Implicit in this result was the learned judge's view that the "living tree" metaphor in reference to the Charter could not reasonably sustain at that stage of development an interpretation of "association " in any but its ordinary, everyday meaning.
In the result, I find that the right of freedom of association in the present case does not extend on balance of probability to embrace the filial association of parent and child in its ordinary, everyday meaning and in the context of the normal family unit, seen as the object of such association.
[46] In Catholic Children's Aid Society of Metropolitan Toronto v. S.(T.) (1989), 69 O.R. (2d) 189 (Ont. C.A.) the Court of Appeal held:
Counsel for the appellant argued that terminating the access of the birth mother, in order to prepare for adoption in this case, would constitute a violation of her "freedom of association". The only authority he could refer to in support of his proposition that this freedom applies to interpersonal relationships like that of parent and child, is a dictum of Kerans J.A. (the other two members concurred in the result, but not the detailed discussion) of the Alberta Court of Appeal in Black v. Law Society of Alberta (1986), 27 D.L.R. (4th) 527, [1986] 3 W.W.R. 590, 44 Alta. L.R. (2d) 1, at pp. 542-3:
In my view, the freedom includes the freedom to associate with others in exercise of Charter-protected rights and also those other rights which -- in Canada -- are thought so fundamental as not to need formal expression: to marry, for example, or to establish a home and family, pursue an education or gain a livelihood.
On the other hand, there have been a number of cases which have specifically rejected claims that family relationships were protected by the freedom of association in s. 2(d) of the Charter. For example, in Re White and Director of Child Welfare (1985), 64 A.R. 81 (Alta.Q.B.), it was held that s. 2(d) does not apply to interests of a grandparent where custody or guardianship is at issue; in Re Downes and Minister of Employment & Immigration (1986), 4 F.T.R. 215 (F.C.T.D.), it was held that s. 2(d) does not apply to a filial relationship to prevent deportation of the father; in Horbas v. Minister of Employment & Immigration (1985), 22 D.L.R. (4th) 600, [1985] 2 F.C. 359 (F.C.T.D.), it was held that the freedom of association under the Charter does not include the right of a citizen and his non-citizen wife to cohabit in Canada; and in Nova Scotia (Minister of Community Services) v. S.(M.K.) (January 19, 1989, N.S.C.A., unreported) [since reported 88 N.S.R. (2d) 418, 19 R.F.L. (3d) 75], it was held that the freedom under Charter s. 2(d) does not include a right to associate in a family unit so as to prevent an order committing a child to the care and custody of the Minister.
In another case -- Shingoose v. Minister of Social Services (1983), 149 D.L.R. (3d) 400, 26 Sask. R. 235 (Sask. Q.B.) (leave to appeal allowed, 4 D.L.R. (4th) 765, 31 Sask. R. 75 (Sask. C.A.), but abandoned on February 19, 1984) -- the court was concerned with a challenge to child apprehension provisions on the basis that they infringed the freedom of association between a mother and her child. Halvorson J. held (at p. 403):
Even if s. 2(d) were designed to protect the association between child and parent, which I doubt, s. 1 of the Charter must prevail to limit this freedom. When a child is taken into protective custody, it is because the officer has reasonable grounds to believe the health and welfare of the child is in immediate jeopardy. A deprivation of association is justified in the best interests of the child. Loss of the freedom of association in such circumstances is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.
I believe that these comments are equally applicable to our case. However, like the courts referred to above, I would also hold that here there is no violation of s. 2(d) of the Charter.
Although I would not suggest that the evolution of the scope of the freedom should be limited by what has traditionally been considered to be within that scope, at least in the early stages of Charter interpretation it has to be an important starting point. The public nature of the fundamental freedoms has been emphasized. Not having been a totalitarian society, we have not been so much concerned with what one may say or write to oneself. It is the communication to others that we have considered important to protect and on which some reasonable limits, like the laws of defamation, have been applied. Similarly, the issues in our history concerning freedom of religion have not been concerned with the private conscience of the individual, as much as with public manifestation of it by individuals or the collective expression of it. The freedoms of assembly and association are necessarily collective and so mostly public. Our constitutional concerns have not been with assemblies within families or associations between family members. Rather, the protections we have been concerned with are for those assemblies and associations that take us outside the intimate circle of our families. The family is a collective, but the desire of one family member to associate with another is not so much for the purpose of pursuing goals in common, nor even pursuing activities in common (Reference re Public Service Employee Relations Act (1987), 38 D.L.R. (4th) 161 at p. 226, [1987] 1 S.C.R. 313 (S.C.C.), per McIntyre J.), as it is merely because they are members of a family. A parent and child may associate for an economic goal, for example, but the motivation comes from their relationship, rather than a relationship being created because of the economic motivation. The desire of a parent to be with a child has no goal or purpose like that of associations for economic, political, religious, social, charitable or even entertainment purposes. If it has any purpose it is that of loving or being loved, of comforting and protecting, or being comforted and protected. That may be a right that must be protected, as in the International Covenant on Civil and Political Rights, in which art. 22 deals with freedom of association, while art. 23(1) provides that:
23(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
[47] Although the courts in the above cases held that freedom of association under subsection 2d) of the Charter does not include family relationships, the courts still made a Charter analysis in order to determine whether section 1 of the Charter would justify the denial of the right.
[48] In the case at bar, even if freedom of association was interpreted to include family relationships, I cannot find that the freedom of association would be infringed by a visual count procedure in a penitentiary. The visual count procedure cannot be said to prevent the plaintiffs association. In any event, section 1 of the Charter would justify the denial of the freedom of association. In my opinion, the visual count policy is a reasonable limit prescribed by law. The objective of the policy is to ensure the security of everyone in a maximum security institution by seeing that everyone is accounted for.
[49] The objective of this visual count policy is to ensure the protection of the inmates, the visitors and the staff at the Institution at all times. Thus, the objective is sufficiently important. The measure adopted has a rational connection to the objective and impairs as little as possible to the freedom. There is a rational connection between the count procedure and the objective which is to ensure the security of everyone in the Institution. The measure also impairs as little as possible the freedom of association of the plaintiffs since it happens only four times a day for a very brief period of time. Furthermore, the measure is the least intrusive since the visitors are to meet the Institution staff at the door of the family visiting unit. I believe that the effects of the policy do not severely trench the plaintiffs' rights and that the objective of the policy is not outweighed by the infringement of the plaintiff's freedom of association.
[50] Thus, this argument fails.
SECTION 7
[51] Under this section, the plaintiffs argue that the policy infringe their right to liberty of the person.
[52] Although the plaintiffs' liberty of movement may be infringed for the brief period of time when the Institution staff proceeded to a visual count, I believe that the same analysis which was made under section 1 of the Charter for the argument brought by the applicants under section 2 of the Charter is applicable. Thus, even if such an infringement exists, section 1 justifies the infringement of the plaintiffs right to liberty of the person, if such an infringement exists.
[53] This argument also fails.
SECTION 12
[54] As for the argument that the visual count policy amounts to cruel and unusual treatment or punishment, it cannot succeed.
[55] In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, the Supreme Court explained section 12 as follows:
In order to come within the protection of s. 12, the appellant must demonstrate two things: first, that she is subjected to treatment or punishment at the hands of the state, and second, that such treatment or punishment is cruel and unusual. In this case, the appellant alleges that the prohibition on assisted suicide has the effect of imposing upon her cruel and unusual treatment in that the prohibition subjects her to prolonged suffering until her natural death or requires that she ends her life at an earlier point while she can still do so without help. In my opinion, it cannot be said that the appellant is subjected by the state to any form of punishment within the meaning of s. 12. The question of whether the appellant is subjected to "treatment", however, is less clear.
The degree to which "treatment" in s. 12 may apply outside the context of penalties imposed to ensure the application and enforcement of the law has not been definitively determined by this Court. In R. v. Smith, [1987] 1 S.C.R. 1045, in which this Court struck down the minimum seven-year sentence for importing narcotics, Lamer J. (as he then was) referred to the lobotomisation of certain dangerous offenders and the castration of sexual offenders as examples of "treatment" which would be contrary to s. 12 as opposed to punishment. Even granting that there may be a distinction in purpose between punishments such as imprisonment or lashings, which involve the convicted person paying his debt to society for the wrong he has committed, and the examples of treatment offered by Lamer J. which are arguably primarily concerned with protecting society from the offender, I would note that these treatments are still imposed by the state in the context of dealing with criminal behaviour.
In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, this Court suggested that s. 12 may have application outside of the criminal context. In that case, I found, for the Court, that the deportation order at issue was not