Tyrrell v. Canada (Attorney General) et al., 2008 FC 42

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: January 09, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 42;(2008), 322 F.T.R. 236 (FC)

Tyrrell v. Can. (A.G.) (2008), 322 F.T.R. 236 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. JA.033

Duff Tyrrell (applicant) v. Attorney General of Canada and Commissioner of Correctional Service of Canada and Mission Institution (respondents)

(T-1886-06; 2008 FC 42)

Indexed As: Tyrrell v. Canada (Attorney General) et al.

Federal Court

Snider, J.

January 11, 2008.

Summary:

Tyrrell, a prison inmate, bought a computer in 1999. With the approval of Correctional Service of Canada (CSC) officials, he purchased and began using the computer with a TV tuner card. In 2005, upon a transfer back to Mission Institution, Tyrrell's computer was not issued to him because the TV tuner card was not permitted under Commissioner's Directive 090. Tyrrell sought to get his computer back with the TV tuner card. His third level grievance was denied by the Assistant Commissioner of the CSC. Tyrrell applied for judicial review.

The Federal Court dismissed the application.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment - Tyrrell, a prison inmate, bought a computer in 1999 - With the approval of Correctional Service of Canada (CSC) officials, he purchased and began using the computer with a TV tuner card - In 2005, upon a transfer back to Mission Institution, Tyrrell's computer was not issued to him because the TV tuner card was not permitted under Commissioner's Directive 090 - Tyrrell sought to get his computer back with the TV tuner card - The Assistant Commissioner of the CSC denied Tyrrell's third level grievance - Tyrrell applied for judicial review, arguing that the decision deprived him of his right to work with a "legal item" in violation of s. 7 of the Charter - The Federal Court dismissed the application - The court held, inter alia, that Tyrrell's right to liberty was not violated - Tyrrell had not demonstrated that owning and operating a TV tuner card was of an "inherently personal" nature warranting s. 7 protection - He had not submitted any evidence or case law suggesting that being deprived of his TV tuner card affected his dignity or independence in a manner envisioned by R. v. Clay (S.C.C.) - The s. 7 liberty interest did not provide protection from all anxieties, stresses and stigmas suffered - See paragraphs 17 to 22.

Civil Rights - Topic 1363.2

Security of the person - Inmates and prisoners - Computers - Tyrrell, a prison inmate, bought a computer in 1999 - With the approval of Correctional Service of Canada (CSC) officials, he purchased and began using the computer with a TV tuner card - In 2005, upon a transfer back to Mission Institution, Tyrrell's computer was not issued to him because the TV tuner card was not permitted under Commissioner's Directive 090 - Tyrrell sought to get his computer back with the TV tuner card - The Assistant Commissioner of the CSC denied Tyrrell's third level grievance - Tyrrell applied for judicial review, arguing that the decision deprived him of his right to work with a "legal item" in violation of s. 7 of the Charter - The Federal Court dismissed the application - The court held, inter alia, that there was no breach of Tyrrell's right to security of the person - There was no evidence that Tyrrell's bodily integrity had been interfered with - The stress and other deprivations suffered by Tyrrell did not reach the level required to amount to serious state-imposed psychological stress - See paragraphs 23 to 24.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Tyrrell, a prison inmate, bought a computer in 1999 - With the approval of Correctional Service of Canada (CSC) officials, he purchased and began using the computer with a TV tuner card - In 2005, upon a transfer back to Mission Institution, Tyrrell's computer was not issued to him because the TV tuner card was not permitted under Commissioner's Directive 090 - Tyrrell sought to get his computer back with the TV tuner card - The Assistant Commissioner of the CSC denied Tyrrell's third level grievance - Tyrrell applied for judicial review - The Federal Court dismissed the application - The court held, inter alia, that given the low to non-existent reasonable expectation of privacy in a prison setting, and Tyrrell's acceptance of CSC procedure to search and seize computer peripherals in general, the seizure of the computer with TV tuner card installed did not infringe on any reasonable expectation of privacy of Tyrrell - Accordingly, s. 8 of the Charter was not called into play - In any event, the court was satisfied that the seizure of the TV tuner card was not unreasonable as it was necessary for the security of CSC's institution - See paragraphs 25 to 28.

Civil Rights - Topic 3828

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Prisoners - Restraints - Tyrrell, a prison inmate, bought a computer in 1999 - With the approval of Correctional Service of Canada (CSC) officials, he purchased and began using the computer with a TV tuner card - In 2005, upon a transfer back to Mission Institution, Tyrrell's computer was not issued to him because the TV tuner card was not permitted under Commissioner's Directive 090 - Tyrrell sought to get his computer back with the TV tuner card - The Assistant Commissioner of the CSC denied Tyrrell's third level grievance - Tyrrell applied for judicial review - The Federal Court dismissed the application - The court held, inter alia, that "CSC has taken steps to minimize the effect of the denial of the TV tuner card while at the same time minimizing the risk to its institutions. In my view, such actions do not constitute cruel and unusual treatment or punishment so excessive as to outrage the standards of decency" - See paragraphs 29 to 31.

Prisons - Topic 1003

Administration - Commissioner's directives - General - [See second Prisons - Topic 1125 ].

Prisons - Topic 1125

Administration - Prisoners' rights - Access to computer and software - [See Civil Rights - Topic 646 , Civil Rights - Topic 1363.2 , Civil Rights - Topic 1646 and Civil Rights - Topic 3828 ].

Prisons - Topic 1125

Administration - Prisoners' rights - Access to computer and software - Tyrrell, a prison inmate, bought a computer in 1999 - With the approval of Correctional Service of Canada (CSC) officials, he purchased and began using the computer with a TV tuner card - In 2005, upon a transfer back to Mission Institution, Tyrrell's computer was not issued to him because the TV tuner card was not permitted under Commissioner's Directive 090 (CD 090) - Tyrrell sought to get his computer back with the TV tuner card - He relied on the 2005 decision in Poulin v. Canada (F.C.) in which Martineau, J., interpreted the exception clause of the June 2003 version of CD 090 to permit an inmate who had a computer with a TV tuner card installed prior to October 2002 to use his TV tuner card - The Assistant Commissioner of the CSC denied Tyrrell's third level grievance - Tyrrell applied for judicial review - The Federal Court dismissed the application - The Assistant Commissioner was entitled to rely on the January 16, 2006, version of CD 090, which was in effect at the time of the disposition of Tyrrell's third level grievance, notwithstanding the fact that the original decision to deny him his TV tuner card was rendered pursuant to the June 2003 version of CD 090 - Unlike the June 2003 version, the 2006 version of CD 090 did not contain a "grandfather" exception - Since Tyrrell's TV tuner card was an explicitly prohibited item at the time of the impugned decision, the Assistant Commissioner was correct to dismiss his grievance - See paragraphs 32 to 42.

Prisons - Topic 1125

Administration - Prisoners' rights - Access to computer and software - Tyrrell, a prison inmate, bought a computer in 1999 - With the approval of Correctional Service of Canada (CSC) officials, he purchased and began using the computer with a TV tuner card - In 2005, upon a transfer back to Mission Institution, Tyrrell's computer was not issued to him because the TV tuner card was not permitted under Commissioner's Directive 090 - Tyrrell sought to get his computer back with the TV tuner card - The Assistant Commissioner of the CSC denied Tyrrell's third level grievance - Tyrrell applied for judicial review - Tyrrell submitted that if the application was dismissed, the court should order CSC to reimburse him for the cost of his computer - The Federal Court dismissed the application and declined to order that CSC reimburse Tyrrell for the cost of his computer - The court stated that "Not only do I question whether such an order would be within the court's jurisdiction, I do not think that such an order is warranted. Mr. Tyrrell can have the use of his computer at any time provided that he agrees to the removal of the TV tuner card ... Further, as an inmate, Mr. Tyrrell must have been aware, when he purchased his computer, that policies on this personal item could change" - See paragraph 43.

Cases Noticed:

Poulin v. Canada (Attorney General) et al. (2005), 306 F.T.R. 15; 2005 FC 1293, refd to. [para. 3].

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; 2000 SCC 44, refd to. [para. 17].

R. v. Clay (C.J.), [2003] 3 S.C.R. 735; 313 N.R. 252; 181 O.A.C. 350, refd to. [para. 19].

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. 24].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 25].

Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; 154 N.R. 392, refd to. [para. 26].

R. v. Guimond (N.B.) (1999), 137 Man.R.(2d) 366 (Q.B.), refd to. [para. 26].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 30].

R. v. Olson (1987), 22 O.A.C. 287; 62 O.R.(2d) 321 (C.A.), affd. [1989] 1 S.C.R. 296; 96 N.R. 223; 33 O.A.C. 369, refd to. [para. 30].

Carlson v. Canada, [1998] F.C.J. No. 733 (T.D.), refd to [para. 30].

Laliberté v. Commissaire du Service Correctionnel du Canada et al. (2000), 181 F.T.R. 276 (T.D.), refd to. [para. 35].

MacDonald v. Canada (Attorney General) (2005), 280 F.T.R. 306; 2005 FC 1326, refd to. [para. 35].

Giesbrecht v. Canada et al. (1998), 148 F.T.R. 81 (T.D.), refd to. [para. 37].

Besse v. Minister of National Revenue (1999), 250 N.R. 308 (F.C.A.), refd to. [para. 38].

Counsel:

Duff Tyrrell, on his own behalf;

Michelle Shea, for the respondents.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This application was heard on January 9, 2008, at Vancouver, British Columbia, before Snider, J., of the Federal Court, who delivered the following decision on January 11, 2008.