Federal Court

Charter of Rights

Inmate ought to have pursued his claim through grievance process

Inmate was incarcerated in federal penitentiary, serving sentence of life imprisonment for four counts of first degree murder, single count of attempted murder and two counts of forcible confinement. While in prison, inmate had authored numerous articles that had been published in variety of scientific journals. In past inmate was able to send electronic copies of his articles on diskette to members of his family, whom he stated forwarded diskettes to journals to facilitate publication. Inmate asserted that new article he wrote was accepted for publication based on typewritten draft that he submitted, but claimed that journal that accepted it required that he provide article in electronic format for it to be published. Inmate alleged that he was prevented from sending diskette of this article to members of his family or to journal by virtue of Bulletin issued by Acting Director, Security of Correctional Services Canada (“CSC”) which prohibited inmates from sending any “form of electronic media through mail to destinations outside of CSC institutions”. Inmate applied to have prohibition set out in Bulletin declared to violate his right to freedom of expression and requested order allowing him to mail computer diskettes to his family, enforceable immediately, regardless of whether or not there was appeals from any order court might issue. Application dismissed with $1,500 costs. Inmate ought to have pursued his claim through grievance process. Absent exceptional circumstances which would render grievance procedure available to inmates ineffective, court should decline to hear judicial review applications in respect of matters that may be subject of grievance. These issues should be decided in first instance through grievance process as this would allow for appropriate record to be compiled. Another judge had dismissed similar claim by inmate for similar reasons earlier in year.

Fabrikant v. Canada (Dec. 18, 2012, F.C., Gleason J., File No. T-1981-12) 104 W.C.B. (2d) 722.

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