Judicial review from decision of Correctional Service Canada denying grievance over cancellation of television channels containing sexually explicit content.

[2015] F.C.J. No. 934

[2015] F.C.J. No. 934

Federal Court Ottawa, Ontario

Gagné J.

July 30, 2015

The applicants, Mr. Naraine and the Inmate Committee of Archambault Institution, applied for judicial review of a decision of the Acting Senior Deputy Commissioner (the "Commissioner") of Correctional Service Canada denying Mr. Naraine's grievance with respect to cancellation of television channels available to inmates which contain sexually explicit content.

Mr. Naraine was a federal inmate at Archambault Institution. Mr. Naraine and other inmates had access to sexually explicit programs as part of a local cable television package. These programs could be accessed on closed circuit channels late in the evening.

Correctional Service Canada determined that material depicting sexually explicit content, on the walls inside inmate's cell or elsewhere in the institution, must be removed and, in particular, that each institution confirm they have introduced "appropriate blockers" to sexually explicit television content. Upon notification of that decision, Mr. Naraine instituted a grievance.

Mr. Naraine's grievance was denied. The Commissioner held that Correctional Service Canada had been informed of serious concerns relating to female correction officers who expressed a degraded sense of personal dignity and their safety being undermined from their exposure to sexually explicit material on a regular basis in the workplace. The Commissioner found it was impossible to limit access to the television channels on a case-by-case basis.

The applicants applied for judicial review. The applicants argued (a) the Commissioner breached his duty of procedural fairness by not informing or consulting with inmates prior to the initial decision and (b) that the decision should be set aside on the basis the Commissioner erred in his interpretation of the applicable legislation or because the decision violated the applicant's Charter right of freedom of expression.

With respect to procedural fairness, the court dismissed this ground of review on the basis the applicant was barred from raising the issue of procedural fairness. The applicant failed to raise procedural fairness at the earliest practical opportunity in the administrative process thereby waiving his right to challenge procedural violations.

With respect to the decision, the court held it was clear from the record there were significant gaps in the record which made it difficult to support the analysis of the impugned decision. In particular, there was no evidence to establish causality between the applicant or any other inmate at the institution with respect to accessing sexually explicit content on television and the sexual harassment of correctional officers or similar misconduct. In the absence of evidence, the decision did not fall within a range of possible, acceptable outcomes which is defensible in respect of the facts and the law. Further, with respect to the applicant's Charter argument, the Commissioner's failure to undertake a thorough analysis of the balancing of interests and rights prevented the court from conducting a review of this aspect of the decision.

The application for a judicial review was granted and the matter remitted to a different Commissioner for a new determination, including a proper assessment of the proportionality of the restriction on the applicant's Charter rights.