**This commentary is cross-posted to CanLII.**
The Federal Court of Canada’s recent decision in Latham v Canada is at first glance an innocuous refusal to allow a dangerous offender release from prison. The 72-year-old offender, Bryan Latham, brought an interim motion pending final decision of his judicial review of the Parole Board’s refusal to parole him. Mr. Latham argued that he ought to be released because ‘his advanced age and pre-existing medical conditions place[d] him at an elevated risk of succumbing to the novel coronavirus’ (para. 2). Mr. Latham invoked section 7 of the Charter of Rights and Freedoms. He also invoked sections 70, 86, and 87 of the Corrections and Conditional Release Act (‘CCRA’). The Court denied Mr. Latham’s motion because the Parole Board has exclusive original jurisdiction to grant parole and because Mr. Latham did not present evidence of a real threat to his health (paras. 51-3, 64, 72). This decision is in point of law correct, but the Court ignores a little-known part of its jurisdiction, that of judicial visitor. I have elsewhere written about this jurisdiction; the present comment illustrates the Federal Court’s power as visitor to prisons. This comment argues that such powers provide a more efficient means of addressing inmates’ concerns.
This case highlights the need for judges to walk the ground in cases where inmates claim some sort of abuse or substantial failure in corrections policy. Firsthand evidence gathered by the judge provides a fresh and personal perspective of the issues at stake, thus allowing the judge to better decide the issues. This approach also mitigates self-represented inmates’ often inexpert gathering and presentation of evidence. The Court views some of the evidence.
Judicial powers with respect to visitors
Judicial visits are not unheard of at Federal Court and in civil actions (viz. Blood First Nation v Canada; Belshaw v Robarts). English judges are able to conduct judicial visits in a prison context (‘Sentencing Scholarship and Sentencing Reform in Canada’, n. 33; Prisons Act, 1952, s. 19 [authorizing justices of the peace]).
A judicial visitor is empowered to inquire into a prison’s physical and psychological context to determine whether abuses exist. Section 72 of the CCRA allows judges to enter any penitentiary, visit any part of a penitentiary, and/or visit any inmate with the inmate’s consent. I have followed the Newfoundland Court of Appeal in R v Taylor to suggest that this power comes with correlative rights to correct abuses in every penitentiary. The power to correct abuses is an equitable power designed for flexibility and to relax procedural requirements. This power is apt with respect to prisons: prisoners often have limited legal resources, thus leaving them at the mercy of the corrections service.
Issues in Latham
The main issue in Latham is that Mr. Latham did not present sufficient evidence to ground his Charter or statutory claims. These claims were designed to allow Mr. Latham his liberty if the Court found in his favour. Mr. Latham’s singular focus in this regard appears to have left the Court with two options: release on parole or continued incarceration. This is a false dichotomy when the law of visitation is applied.
Justice Pamel points this issue up in Latham:
The ongoing pandemic requires our correctional institutions and the courts that supervise their decisions to employ new ways to account for the specific risks posed by the virus. The appropriateness of each avenue depends on the nature of the claim, the status of the applicant, and the facts of the case.Para. 80
The Court takes an appropriately context-specific approach to each case. It does not, however, facilitate Mr. Latham’s ability to present persuasive evidence:
I think short of more significant evidence to support a finding that Mr. Latham’s Charter [sic] rights have been breached, it must be for the Parole Board and CSC to develop the mechanisms necessary to protect individuals like Mr. Latham in the face of the extreme challenges and dangers brought on by COVID-19.Para. 79
This deference to the executive branch may not be warranted when the law of visitation is taken into account. The Crown’s attorney begged this question by challenging the Court’s jurisdiction to order Mr. Latham’s release on Charter or compassionate grounds absent a full review of the Parole Board’s decision (para. 89). The Court properly declined comment, but the question remains.
Courts traditionally trifle with executive decisions on judicial review. Mr. Latham’s request, however, engages procedure in equity because the Court had the power to visit the correctional institution to evaluate Mr. Latham’s claim. The Court would then have been better placed to adjudicate Mr. Latham’s Charter and statutory rights with a view to correcting any perceived inequities or errors in Corrections Canada processes.
I am speaking of equity in public law—a concept that has not been much used since Canadian legislators and judges abandoned the ancient Exchequer jurisdiction. Though I do not purpose to describe this jurisdiction at length here, its procedure as a court of common law and equity allowed it to tailor remedies to each case, depending on its common law and equitable nature. This tailoring occurred in revenue cases, but was also concerned with general supervision of the Crown’s actions against subjects.
The Federal Court, of course, maintained the Exchequer’s jurisdiciton regarding non-revenue federal matters (Federal Courts Act, s. 26). It remains a ‘court of law, equity and admiralty’ (s. 4).
As a court of equity, the Federal Court is able to adjust its procedure to exceptional circumstances (Federal Courts Rules, rule 3). The rules do not mention the Court’s power to visit. Part 5, Applications, is the best vehicle for any application to visit a prison because the proceeding is ‘required or permitted by or under an Act of Parliament’ (rule 300[b]). The CCRA allows judges to visit; the process by which a subject brings this matter to judicial attention is thus permitted by the Act.
Part 5 of the rules is typically used for judicial review. Judicial review is a combined statutory and common law appeal to law courts against administrative decisions. The process does not often involve equity because the law of judicial review is a field unto itself.
The Court’s right to visit prisons intrudes a corollary equitable power under Part 5 because visitors, though recognized in common law, are creatures in equity. They have no set procedures and do not fall under a particular body of law (although modern visitors do reach for common legal principles). Visitors rely on their consciences and on the organization’s founding documents.
Applying procedure to Mr. Latham’s case
Mr. Latham’s case is fertile ground for judicial visitation because he did not provide enough evidence to ground his claim. The government’s objection to the Federal Court’s jurisdiction, moreover, sought to preclude any judicial intervention. Mr. Latham had framed his issue to obtain release; release was not the only possible relief. The Court could order preventative measures to increase Mr. Latham’s safety while in prison. These measures indeed might have been more appropriate.
The procedure in a case where neither party pleads the issue is well established: the Court can request submissions on a particular point, such as visitation, to determine whether it might be used in the circumstances. Justice Pamel’s reasons suggest that a visit might have been appropriate to assess the prison environment with respect to Mr. Latham’s medical status. In so doing, the Court intimately understands the litigant’s circumstances, which gives its decision greater legitimacy between the parties and in the public eye.
Mr. Latham’s application for judicial review also allows visitation to intrude without changing the application’s underlying nature. Part 5 of the Federal Court Rules allows the statutory and common law proceeding to run concurrently with equitable relief.
More critically still, the Court has every right to visit; it does not necessarily have the right to grant parole in exigent circumstances. Visitation thus allows Justice Pamel (in this case) to find a middle ground between protecting the Canadian public and ensuring that Mr. Latham’s right to life is reasonably maintained.
Mr. Latham’s right to life while in prison is inherently speculative during the COVID pandemic. The binary logic deployed in this case places the onus on Mr. Latham to prove a violation of his rights, but that violation can really only be proved if Mr. Latham has the resources to receive epidemiological evidence of his correctional institution’s failings. Most federal inmates will not possess these resources. Mr. Latham’s claim is thus speculative because he can only imagine the possibilities. His concerns, however, remain valid and deserve some compassionate judicial treatment. Justice Pamel’s decision is an example of such compassion, but he might have gone further had the law of visitation been pled.
More Charter and statutory challenges to prison conditions during this public health crisis are forthcoming, and courts will need to innovate in order to provide substantive and procedural justice to inmates. Prison visitation represents a distinct reason for applications in Federal Court with vastly relaxed rules for litigants and judges. This procedure might seem lawless to opponnents of visitation; it is instead one of the purest exercises of equity and common sense left to Canadian courts. A judge needs to really consider the prospective effects of her or his decision on inmates. Judges’ ability to inspect Canadian prisons is an opportunity to craft judicial solutions tailored to individual inmates’ and to the extraordinary circumstances of our times. In this way, legal rules, though important, may cede to the dictates of a judge’s conscience.