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A Federal Court judge has quashed a decision by Correctional Service Canada to cut off two cable channels that broadcast late-night pornography to inmates at Archambault Institution, a federal penitentiary north of Montreal.
Haris Naraine, a 46-year-old Archambault inmate, filed a grievance in 2013 after prison authorities cancelled the two channels, included in a local cable package purchased by a group of inmates.
The inmates accessed the sexually explicit programs in their cells on closed circuit channels, typically after 11 p.m.
In an affidavit, Naraine said he had viewed sexually explicit content at Archambault, which houses minimum and medium security inmates, and two other institutions for at least seven years without incidents or complaints from correctional officers.
Naraine’s grievance was denied by CSC’s acting senior deputy commissioner in 2014. But in a judgment dated July 30, Federal Court Justice Jocelyn Gagné overturned that decision and sent the matter back for a new determination by a different commissioner at CSC.
The role of the court, Gagné said, was “not to determine whether or not inmates in CSC’s institutions should have access to sexually explicit television programs, but rather to assess the legality of the commissioner’s decision.”
That decision, she concluded, “does not fall within a range of possible, acceptable outcomes which is defensible in respect of the facts and law.”
CSC cancelled the stations shortly after testimony by two female correctional officers before the Commons Standing Committee on the Status of Women in January 2013.
The witnesses raised concerns about sexual harassment of female officers by inmates and CSC’s failure to deal appropriately with it.
One also cited a 2012 tweet by Vic Toews, then minister of public safety, in which he called access to pornography in federal prisons unacceptable and pledged he would be “putting an end” to it.
In rejecting Naraine’s grievance, the CSC commissioner found that serious concerns had been raised by female correctional officers about their security and personal dignity as a result of the sexually explicit material being viewed by inmates.
In support of her decision, the commissioner specifically cited the testimony of the two correctional officers.
But Gagné said their testimony focused mainly on the failures of CSC’s redress process for female employees with sexual harassment complaints.
“Security issues and emotional harm resulting from inmates’ access to sexually explicit material was not the focus of the two testimonies,” she wrote in her decision.
“The focus was rather on the lack of awareness, support and responsive action on the employer’s part to prevent female officers from being sexually harassed by inmates.”
Gagné, who was appointed to the court in 2012 by the Conservative government, said she agreed that there must be a “zero tolerance policy” toward inmates sexually harassing correctional officers.
If the Correctional Service could establish “causality” between inmates viewing sexually explicit material and sexual harassment of correctional officers, she wrote, “it would justify the imposition of a ban. However, there was no such evidence before the commissioner.”
Naraine was represented at the Federal Court hearing by Kanata lawyer Todd Sloan, a former general counsel to the correctional investigator of Canada, the prison ombudsman.
Sloan argued that CSC’s decision to ban the channels violated Naraine’s constitutional rights to freedom of expression.
Federal lawyers conceded that the ban did limit freedom of expression but argued the commissioner’s decision struck a “proportionate balance” between the Charter guarantee and the statutory objectives of the Corrections and Conditional Release Act.
Gagné said it was impossible for the court to assess whether the ban had a disproportionate impact on freedom of expression “as no real balancing exercise was conducted by the commissioner.”
In an interview Friday, Sloan said it was clear from the court’s decision that “they’ve determined that the issue of freedom of expression can’t be restricted without justifiable, demonstrable reasons for doing so.
“I don’t think this should be characterized in any way as a victory for pornography,” he said. “It was simply a requirement — the same as with any other decision where there are rights involved — that they be done in accordance with the law.”
Sloan said watching the sexually explicit programming was important to his client and other inmates “because they are things that people in the community would be able to view if they paid for them (and) because they consider themselves to be adults and wish to view that kind of material.”
Neither CSC nor Public Safety Minister Steven Blaney had any immediate comment on the Federal Court decision.
dbutler@ottawacitizen.com
twitter.com/ButlerDon
查看原文...
Haris Naraine, a 46-year-old Archambault inmate, filed a grievance in 2013 after prison authorities cancelled the two channels, included in a local cable package purchased by a group of inmates.
The inmates accessed the sexually explicit programs in their cells on closed circuit channels, typically after 11 p.m.
In an affidavit, Naraine said he had viewed sexually explicit content at Archambault, which houses minimum and medium security inmates, and two other institutions for at least seven years without incidents or complaints from correctional officers.
Naraine’s grievance was denied by CSC’s acting senior deputy commissioner in 2014. But in a judgment dated July 30, Federal Court Justice Jocelyn Gagné overturned that decision and sent the matter back for a new determination by a different commissioner at CSC.
The role of the court, Gagné said, was “not to determine whether or not inmates in CSC’s institutions should have access to sexually explicit television programs, but rather to assess the legality of the commissioner’s decision.”
That decision, she concluded, “does not fall within a range of possible, acceptable outcomes which is defensible in respect of the facts and law.”
CSC cancelled the stations shortly after testimony by two female correctional officers before the Commons Standing Committee on the Status of Women in January 2013.
The witnesses raised concerns about sexual harassment of female officers by inmates and CSC’s failure to deal appropriately with it.
One also cited a 2012 tweet by Vic Toews, then minister of public safety, in which he called access to pornography in federal prisons unacceptable and pledged he would be “putting an end” to it.
In rejecting Naraine’s grievance, the CSC commissioner found that serious concerns had been raised by female correctional officers about their security and personal dignity as a result of the sexually explicit material being viewed by inmates.
In support of her decision, the commissioner specifically cited the testimony of the two correctional officers.
But Gagné said their testimony focused mainly on the failures of CSC’s redress process for female employees with sexual harassment complaints.
“Security issues and emotional harm resulting from inmates’ access to sexually explicit material was not the focus of the two testimonies,” she wrote in her decision.
“The focus was rather on the lack of awareness, support and responsive action on the employer’s part to prevent female officers from being sexually harassed by inmates.”
Gagné, who was appointed to the court in 2012 by the Conservative government, said she agreed that there must be a “zero tolerance policy” toward inmates sexually harassing correctional officers.
If the Correctional Service could establish “causality” between inmates viewing sexually explicit material and sexual harassment of correctional officers, she wrote, “it would justify the imposition of a ban. However, there was no such evidence before the commissioner.”
Naraine was represented at the Federal Court hearing by Kanata lawyer Todd Sloan, a former general counsel to the correctional investigator of Canada, the prison ombudsman.
Sloan argued that CSC’s decision to ban the channels violated Naraine’s constitutional rights to freedom of expression.
Federal lawyers conceded that the ban did limit freedom of expression but argued the commissioner’s decision struck a “proportionate balance” between the Charter guarantee and the statutory objectives of the Corrections and Conditional Release Act.
Gagné said it was impossible for the court to assess whether the ban had a disproportionate impact on freedom of expression “as no real balancing exercise was conducted by the commissioner.”
In an interview Friday, Sloan said it was clear from the court’s decision that “they’ve determined that the issue of freedom of expression can’t be restricted without justifiable, demonstrable reasons for doing so.
“I don’t think this should be characterized in any way as a victory for pornography,” he said. “It was simply a requirement — the same as with any other decision where there are rights involved — that they be done in accordance with the law.”
Sloan said watching the sexually explicit programming was important to his client and other inmates “because they are things that people in the community would be able to view if they paid for them (and) because they consider themselves to be adults and wish to view that kind of material.”
Neither CSC nor Public Safety Minister Steven Blaney had any immediate comment on the Federal Court decision.
dbutler@ottawacitizen.com
twitter.com/ButlerDon
查看原文...
