Criminal Trial Lawyers' Association et al. v. Alberta (Solicitor General) et al., 2004 ABQB 534

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 21, 2004
• Citations: 2004 ABQB 534;(2004), 364 A.R. 109 (QB)

Criminal Trial Lawyers' v. Alta. (2004), 364 A.R. 109 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JL.126

Rod Gregory on behalf of the Criminal Trial Lawyers' Association, the Criminal Trial Lawyers' Association, Native Counselling Services of Alberta and Paul Jason Smith (applicants) v. The Solicitor General of Alberta, the Chief Executive Officer of the Alberta Correctional Services and the Director of the Edmonton Remand Centre (respondents)

(0403 09032; 2004 ABQB 534)

Indexed As: Criminal Trial Lawyers' Association et al. v. Alberta (Solicitor General) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

July 12, 2004.

Summary:

A new telephone system implemented at the Edmonton Remand Centre permitted inmates to make local telephone calls on a collect call basis only and required the recipient to agree to accept the call and to pay a fee. The new system was implemented to prevent harassing phone calls from inmates and to reduce the potential for criminal activity such as smuggling contraband. The applicants applied for a declaration that the implementation and operation of the new telephone system breached inmates' rights under ss. 2(b), 2(d), 7, 11(d) and 11(e) of the Charter. They also sought a mandatory injunction compelling the respondents to replace the telephone system with the system previously used.

The Alberta Court of Queen's Bench declared that the decision to implement and the implementation and use of the new telephone system at the Edmonton Remand Centre violated ss. 7 and 11(d) of the Charter. The court declined to grant a mandatory injunction in order to allow the respondents an opportunity to introduce modifications to the new telephone system necessary to address the concerns raised. The applicants were entitled to bring a further application for an injunction if a satisfactory resolution was not forthcoming within a reasonable period. Upon such an application being made, any party would be entitled to lead evidence as to how the system could be modified to preserve its security features while satisfactorily addressing those features which gave rise to the Charter breaches.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment - A new telephone system implemented at the Edmonton Remand Centre permitted inmates to make local calls on a collect call basis only and required the recipient to agree to accept the call and to pay a fee - The new system was implemented to prevent harassing phone calls from inmates and to reduce the potential for criminal activity such as smuggling contraband - The Alberta Court of Queen's Bench held that the new telephone system impeded remand inmates in their attempt to obtain or exercise bail or in locating potential witnesses for trial in breach of their right to liberty under s. 7 of the Charter and their right to a fair trial under s. 11(d) of the Charter - The new telephone system was not saved by s. 1 of the Charter - It did not meet the requirement that it impair the remand inmates' ss. 7 and 11(d) rights as little as possible where there were methods by which it could be modified while retaining the security features it offered - See paragraphs 61 to 109.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms -Denial of liberty - What constitutes - [See Civil Rights - Topic 646 ].

Civil Rights - Topic 1206.5

Security of the person - Right to psychological integrity - [See Civil Rights - Topic 1363.1 ].

Civil Rights - Topic 1363.1

Security of the person - Institutional inmates - Telephone calls - A new telephone system implemented at the Edmonton Remand Centre permitted inmates to make local calls on a collect call basis only and required the recipient to agree to accept the call and to pay a fee - The new system was implemented to prevent harassing phone calls from inmates and to reduce the potential for criminal activity such as smuggling contraband - The Alberta Court of Queen's Bench held that the new telephone system did not breach the s. 7 Charter right to "security of the person" by limiting a remand inmate's ability to garner moral and psychological support from family and friends while in custody - That argument had previously been rejected by the court in a case involving serving penitentiary prisoners and limiting contact with friends and family would presumably have more impact on a serving prisoner than a remand prisoner - Further, any serious harm created by limiting contact with family and friends was speculative - See paragraphs 81 to 82.

Civil Rights - Topic 1849

Freedom of speech or expression - Limitations on - Prisoners - Restraints - A new telephone system implemented at the Edmonton Remand Centre permitted inmates to make local calls on a collect call basis only and required the recipient to agree to accept the call and to pay a fee - The new system was implemented to prevent harassing phone calls from inmates and to reduce the potential for criminal activity such as smuggling contraband - The Alberta Court of Queen's Bench accepted that inmates' telephone calls fell within the definition of freedom of "expression" in s. 2(b) of the Charter - However, the court held that s. 2(b) did not pose a positive obligation on government to fund communications and that section was therefore not breached by the implementation of the new telephone system - Section 2(d) of the Charter (freedom of association) was also not breached by the new telephone system for the same reasons given in relation to s. 2(b) - See paragraphs 48 to 60.

Civil Rights - Topic 2147

Freedom of association - Limitations on - Prisoners - Restraints - [See Civil Rights -Topic 1849 ].

Civil Rights - Topic 3152

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Inmates - [See Civil Rights - Topic 646 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Right to just and fair trial - [See Civil Rights - Topic 646 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 646 ].

Prisons - Topic 1116

Administration - Prisoners' rights - Telephone calls - [See Civil Rights - Topic 646 , Civil Rights - Topic 1363.1 and Civil Rights - Topic 1849 ].

Cases Noticed:

Olson v. Canada et al. (1990), 39 F.T.R. 77 (T.D.), consd. [para. 31].

Hunter et al. v. Commissioner of Corrections (Can.) et al., [1997] 3 F.C. 936; 134 F.T.R. 81 (T.D.), dist. [para. 33].

Alcorn et al. v. Commissioner of Corrections (Can.) et al. (1999), 163 F.T.R. 1 (T.D.), affd. (2002), 289 N.R. 39 (F.C.A.), dist. [para. 38].

Maltby et al. v. Saskatchewan (Attorney General) (1982), 20 Sask.R. 366; 2 C.C.C.(3d) 153 (Q.B.), consd. [para. 42].

Geary v. Edmonton Remand Centre (Director) et al. (2004), 350 A.R. 143; 2004 ABQB 19, consd. [para. 43].

R. v. Hall (D.S.), [2002] 3 S.C.R. 309; 293 N.R. 239; 165 O.A.C. 319; 4 C.R.(6th) 197, refd to. [para. 45].

McIntyre et al. v. Ontario (Minister of Correctional Services) et al. (2000), 134 O.A.C. 40 (Div. Ct.), consd. [para. 46].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129, refd to. [para. 50].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 52].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [para. 52].

Pleau v. Nova Scotia (Prothonotary) (1998), 186 N.S.R.(2d) 1; 581 A.P.R. 1 (S.C.), refd to. [para. 56].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 16 C.R.(3d) 294; 105 D.L.R.(3d) 745; 50 C.C.C.(2d) 495, refd to. [para. 63].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 65].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 66].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 72].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 74].

Henry v. Commissioner of Penitentiaries, [1987] 3 F.C. 420; 10 F.T.R. 166 (T.D.), consd. [para. 79].

Soenen v. Director of Edmonton Remand Centre, [1984] 1 W.W.R. 71; 48 A.R. 31 (Q.B.), refd to. [para. 84].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 87].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 88].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 88].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 91].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243; 17 C.R.(4th) 2, refd to. [para. 97].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 101].

Harvey v. New Brunswick (Attorney General) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, refd to. [para. 107].

Authors and Works Noticed:

Hogg, Peter, Constitutional Law of Canada (3rd Ed. 1992) (Supp.), pp. 44-9, 44-10 [para. 73]; 1113 [para. 87].

Counsel:

Charles Davison, for Rod Gregory, the Criminal Trial Lawyers' Association and Paul Jason Smith;

Brian Beresh, for Native Counselling Services of Alberta;

Lionel Whittaker, for the respondents.

This application was heard on May 21, 2004, before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 12, 2004.