T-6575-82
Robert Collin, Raynald Nadeau, Richard Corbeil,
Pierre de Repentigny, inmates at the Leclerc
Institution and Inmates' Committee of the Leclerc
Institution, Represented by Marcel Talon in his
capacity as Chairman (Applicants)
v.
The Honourable Robert Kaplan, in his capacity as
Solicitor General of Canada and Donald R. Yeo-
mans, Commissioner, Correctional Service of
Canada (Respondents)
Trial Division, Dubé J.—Montreal, September 20;
Ottawa, September 23, 1982.
Judicial review — Equitable remedies — Injunctions —
Motion for interlocutory injunction directing respondents not
to authorize double occupancy of cells in federal penitentiaries
— Double-celling necessary as temporary measure to handle
new inmates in medium-security penitentiaries — Allegations
that double-celling resulting in unacceptable standards of
hygiene, living space, physical and moral health, security,
maintenance of order and quality of life — Applicants rely on
U.N. Convention advocating single occupancy — Applicants
also argue that double-celling "cruel and unusual treatment"
contrary to s. 12 of Canadian Charter of Rights and Freedoms
— Motion dismissed — Applicants cannot rely on U.N. Con
vention because no existing federal law implementing it — No
proof of cruel and unusual treatment affecting inmates —
Applicants lack locus standi since double-celling will only
affect new inmates — American cases discussed and distin
guished — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 12.
Motion for interlocutory injunction directing respondents not
to authorize double occupancy of cells in federal penitentiaries.
Authorities decided to resort to double-celling of new inmates
in certain medium-security institutions as a temporary measure
to handle an increase in the number of prisoners until new
penitentiaries are constructed. Applicants allege that the mini
mum standards of detention would not be met given the size of
each cell. The overcrowding problems will extend to dining
rooms, gymnasiums and hallways. Questions of morality and
homosexuality were also raised. Applicants relied upon a
United Nations Convention, allegedly ratified by Canada in
1955 and approved in 1975 by a member of the Canadian
delegation. The Convention advocated individual occupancy of
cells even if reasons for double occupancy were temporary and
stipulated that all sleeping accommodation shall meet all
requirements of health, due regard being paid to climatic
conditions and particularly to cubic content of air, minimum
floor space, lighting, heating and ventilation. The applicants'
second argument is that double-celling is "cruel and unusual
treatment" contrary to section 12 of the Canadian Charter of
Rights and Freedoms.
Held, the motion is dismissed. The first submission fails
because there is no existing federal law giving effect to the
United Nations Convention. As to the second argument, there
are no decisions on what constitutes cruel and unusual punish
ment in Canada. However, the United States Constitution
provides protection against cruel and unusual punishments. In
the absence of Canadian precedents in this area, it would be
incautious not to give some thought to the work of American
jurists. In a recent American case, two prisoners who were
double-celled obtained an injunction, but the decision was
reversed by the Supreme Court of the United States. The
Supreme Court defined "cruel and unusual" as including not
only "barbaric physical punishments" but also the "unneces-
sary and wanton infliction of pain ... totally without penologi-
cal justification". These terms are to be defined in accordance
with "standards of decency that mark the progress of a matur
ing society". The lower court based its order on five consider
ations: the prisoners were serving long terms of imprisonment,
the prison housed 38% more prisoners than its capacity, con
temporary standards dictate that a prison inmate should have
at least 50 to 55 square feet of living quarters, a prisoner who is
double-celled will spend most of his time in the cell with his
cellmate, and the prison had made double-celling a practice and
it was not a temporary condition. Double-celling in Canadian
institutions will create similar problems. However, two of the
five factors considered by the American Court do not apply
here as the prisoners are serving time in a medium-security
penitentiary and the double-celling will be temporary. In these
circumstances and in the absence of any proof of cruel and
unusual treatment or punishment, the Court should not inter
vene. Applicants have no locus standi since the double-celling
does not affect them directly in that this arrangement will
apply only to new inmates.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Rhodes, Governor of Ohio, et al. v. Chapman et al., 452
U.S. 337, 69 L Ed 2d 59, 101 S. Ct. 2392 (1981).
REFERRED TO:
Forget v. Kaplan (1981), 2 C.H.R.R. D/441 (F.C.T.D.);
Grand Council of the Crees (of Quebec) v. The Queen,
[1982] 1 F.C. 599 (C.A.).
COUNSEL:
Francine Paquette for applicants.
Jacques Ouellet, Q.C. for respondents.
SOLICITORS:
Paquette, Jones & Associates, Montreal, for
applicants.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for order rendered by
Dust J.: This motion asks the Court to issue an
interlocutory injunction directing respondents not
to authorize double occupancy of cells in federal
penitentiaries, and in particular in the Leclerc
Institution. Another motion heard concurrently
concerns the Laval Federal Training Centre. By
consent, the same decision will apply to both
motions.
It appeared that in order to handle a significant
increase in the number of inmates, the authorities
of the Correctional Service of Canada have decid
ed to resort to double-ceiling in certain medium-
security institutions, including the Saskatchewan
Penitentiary and the Stoney Mountain and Drum-
heller Institutions, all three located in the western
provinces, and the two aforesaid institutions in
Quebec. According to the affidavits filed by
respondents, this temporary measure is designed to
cope with the situation until other penitentiaries,
currently under construction at Renous in New
Brunswick and at Donnacona and Drummondville
in Quebec, are ready to receive inmates. Other
penitentiaries are also being renovated at various
locations in Canada.
Applicant inmates alleged that their rights have
been directly and adversely affected by this deci
sion to impose double-celling on them.' They con
tended that the result of implementing this deci
sion would be to fall below the minimum
acceptable standards for detention, particularly
with regard to standards of hygiene, living space,
physical and moral health, security, the mainte
nance of order and the quality of life in general. In
' The transcript of the meeting between the authorities and
the Inmates' Committee (minutes of June 16, 1982) states that
"double cells will be occupied by newly arrived inmates".
their submission, overcrowding in these penitenti
aries will result in lowering productivity in various
inmate activities, such as work, education, recrea
tion and training. From the layout of the ordinary
cell in the Leclerc Institution, they maintained, it
is apparent that only bunk beds could be used,
which means that the inmate occupying the top
bed will suffer hardship from the air vents located
in the ceiling. The ordinary individual cell in the
Leclerc Institution measures 11 ft. 6 ins. by 6 ft.,
or about 69.6 square feet. They alleged that double
occupancy of such a narrow cell is unacceptable,
unfair, unreasonable, cruel and unusual and does
not comply with the rules of equity.
To begin with, applicants cited a United
Nations Convention ratified by Canada in 1955:
this Convention was allegedly approved in 1975 by
a member of the Canadian delegation. 2 The fol
lowing two articles of this Convention are repro
duced in the motion as follows:
9.1 Where sleeping accommodation is in individual cells or
rooms, each prisoner shall occupy by night a cell or room by
himself. If for special reasons, such as temporary overcrowding,
it becomes necessary for the central prison administration to
make an exception to this rule, it is not desirable to have two
prisoners in a cell or room.
10. All accommodation provided for the use of prisoners and in
particular all sleeping accommodation shall meet all require
ments of health, due regard being paid to climatic conditions
and particularly to cubic content of air, minimum floor space,
lighting, heating and ventilation.
Counsel for the applicants was however unable
to cite any Canadian statute or Order in Council
giving effect to the said Convention or either of the
two articles cited above. This allegation therefore
cannot be the basis for any entitlement to an order
for an interlocutory injunction by this Court.
Applicants' second argument rests on an authen
tically Canadian basis, which is fundamental to
the protection of the rights and freedoms of
Canadians: the Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
2 The statement by the Canadian delegate, J. R. Boyce, filed
at the hearing, indicates Canada's approval of the Standard
Minimum Rules of the United Nations in their entirety and its
intention to "submit them to Ministers and Deputy Ministers
for implementation".
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.). Applicants cited sections 1, 7 and 12, but
it is really in section 12 that their hopes for
protection against this decision to adopt double-
celling may lie, if such a system in fact constitutes
"cruel and unusual treatment". The section reads
as follows:
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
Does this case involve "cruel and unusual treat
ment or punishment"? The cell plans filed in
support of the motion show clearly that there is not
sufficient space for two beds and that a second bed
would have to be placed over the first. It is quite
clear that living space, which is already very lim
ited, will be even more so with the arrival of a
second occupant. Obviously, two inmates placed in
such a narrow room cannot have the same degree
of comfort as a single inmate. The problems that
double-celling will create can easily be imagined,
and there may be others as well: the lack of space
for personal items, difficulties in maintaining
health standards, tension between the two inmates
in the event of a conflict of personalities. Addition
ally, overcrowding will have effects elsewhere in
the institution and will overflow into dining rooms,
gymnasiums, hallways and so on where space will
be at a premium. The written motion does not
raise the question of morality and homosexuality,
but counsel for the applicants mentioned this in his
oral arguments.
All these problems are noted, not only in the
affidavits of applicants, but also in the affidavit of
the President of the Union of Solicitor General
Components at the Leclerc Institution (the guards'
union).' In the submission of this employee, major
problems of all kinds will result from double-cell-
ing. He stated that the schools and industries in
the penitentiary are operating at full capacity: they
are already congested. In his view, the dining
room, the cinema, the gymnasium and the class
rooms are now inadequate to accommodate the
existing population. The cells consist of four solid
walls and have no bars, which further limits venti-
3 None of these sworn statements was contradicted and none
of the persons making them was cross-examined.
lation. There is no air conditioning. The President
of the Union also feared repercussions in violence
and riots.
I think it is apparent, therefore, that however
temporary the double occupancy of these cells may
be, it is not to be recommended. However, the
Court is not responsible for administering Canadi-
an penitentiaries. What I must decide here is
whether this proposed double-celling entitles appli
cants to an interlocutory injunction. In other
words, does double-celling constitute cruel and
unusual treatment or punishment against which
the inmates are entitled to protection under section
12 of the Charter?
The Charter is in its infancy and there have not
so far been any decisions on the matter in Canada.
The U.S. Constitution, on the other hand, has been
in existence for many years; and the Eighth and
Fourteenth Amendments provide protection
against "cruel and unusual punishments". In a
recent case 4 two prisoners who were double-celled
in an Ohio prison obtained an injunction in the
District Court against the Governor of the State:
this order was affirmed by the Court of Appeal for
the Sixth Circuit. The lower court based its order
on five considerations. First, the prisoners were
serving long terms of imprisonment. Second, the
prison housed 38% more prisoners than its capaci
ty. Third, contemporary standards dictate that a
prison inmate should have at least 50 to 55 square
feet of living quarters, as compared with the 63
square feet which the double-celled inmates
shared. Fourth, a prisoner who is double-celled will
spend most of his time in the cell with his cellmate.
Fifth, the prison had made double-celling a prac
tice and it was not a temporary condition.
The Supreme Court of the United States
reversed this decision (Marshall J. dissenting). At
the outset, the Court attempted to define the
phrase "cruel and unusual", and did so "in a
flexible and dynamic manner" [at page 68]. The
phrase goes beyond "barbaric physical punish
4 Rhodes, Governor of Ohio, et al. v. Chapman et al., 452
U.S. 337, 69 L Ed 2d 59, 101 S. Ct. 2392 (1981).
ments" and includes the "unnecessary and wanton
infliction of pain ... totally without penological
justification" [at page 68]. These terms are to be
defined in accordance with "standards of decency
that mark the progress of a maturing society" [at
page 68]. The Court reviewed certain unfortunate
situations that once prevailed in certain prisons in
the South of the United States, where the condi
tion of prisoners became vile and degrading. It
concluded that the five foregoing considerations on
which the District Court relied in issuing its
injunction were "insufficient to support its consti
tutional conclusion" [at page 70]: at most, these
considerations amounted to a theory that double-
celling inflicts a punishment. The Court noted that
the U.S. Constitution does not mandate comfort
able prisons. It indicated the goals of the penal
function in the criminal justice system as follows:
"to punish justly, to deter future crime, and to
return imprisoned persons to society with an
improved chance of being useful, law-abiding citi
zens" [at page 72].
The Supreme Court concluded that, in the
abstract, the District Court might be right in
finding that overcrowding and double-ceiling in
general caused serious hardship to prisoners; but it
noted that cases are not decided in the abstract
and that the five considerations of the District
Court were insufficient to support the injunction
sought.
I am of course not bound by this decision of the
highest U.S. Court; but in the absence of any
precedents in this area in Canada as the Canadi-
an Charter is still in its infancy—it would be to
say the least incautious not to give some thought to
the work of our brother jurists to the south who
have worked with their Constitution for many
years and applied it to situations that have arisen
in the U.S., situations which are often similar to
our own. Double-celling in the two Canadian insti
tutions will certainly create problems of the same
kind in Canada. However, it should be noted that
two of the five considerations of the U.S. lower
Court do not apply here. First, the prisoners in
question in Canada are serving time in a medium-
security institution. Second, in Canada the double-
celling will be temporary, whereas in the max-
imum-security prison in Ohio it was permanent.
Clearly, these two distinctions make the allega
tions of this motion even less sufficient to support
the making of the order sought.
I accordingly find as follows:
1. In principle double-celling in the two Canadi-
an penitentiaries is not to be recommended.
2. Since the situation will be temporary, and in
the absence of any actual proof of cruel and
unusual treatment or punishment affecting the
inmates, the Court should not intervene.
3. The applicants on the motion at bar have no
locus standi in this matter, since the double-cell-
ing does not affect them directly: if it occurs,
double-celling will apply only to new inmates.
4. This order does not exclude the possibility of
a further motion for an injunction, once the
double-celling system has been introduced in the
cells: the inmates affected will then have to
prove that this situation constitutes "cruel and
unusual treatment or punishment" of them.
5. Such a motion for an injunction should not be
brought against the Minister (see Forget v.
Kaplan (1981), 2 C.H.R.R. D/441 (F.C.T.D.)
and the Grand Council of the Crees (of Quebec)
v. The Queen, [1982] 1 F.C. 599 (C.A.)).
The motion will accordingly be dismissed, but in
the circumstances without costs.
ORDER
The motion is dismissed without costs.
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