May 14, 2020

Opening the black box: the law of prison visitation

R. v. Taylor, 2013 NLCA 42 (CanLII)

**What follows supplements my forthcoming article on the law of university visitation in Canada, which will appear in the Windsor Yearbook of Access to Justice. A permanent link to this article will appear on my publications page.**

**This post is cross-posted from apstrom.ca.**


Prisons are typically viewed as public institutions. Funded by government, penitentiaries accomplish clear governmental public safety functions, yet the law of judicial review does not allow free flow of information between prisoners and the public. No particular right attached to, say, a journalist's desire to speak with prisoners. The government controls access to prisons. This problem takes on special significant during this COVID outbreak because prisoners are disproportionately affected by communicable disease.

Most lawyers would look to cutting-edge administrative or human rights law for a solution. With respect to these eminent minds, I think the solution is better found with recourse to the great lake of English precedents. An especially relevant group of precedents surrounds section 72 of the Corrections and Conditional Release Act. This provision reads:

Every member of the House of Commons, every Senator and every judge of a court in Canada has the right to

(a) enter any penitentiary,

(b) visit any part of a penitentiary, and

(c) visit any inmate, with the consent of the inmate,

subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

This provision entitles judges (in particular) to attend at a prison with a view to determining whether the living conditions are adequate.

This kind of provision is a legislative expression of the ancient visitatorial jurisdiction, where the founder of a charity retains the right to inspect the affairs of their foundation and correct abuses. I often describe this function as a crown-in-miniature because visitors have all the rights of an executive, a legislator, and a judge. The three branches of government combine in a single person. If this law applies to prisons, judges can exert their powers as judges and as visitors to correct abuses in the prison system. This law then supplies a novel set of remedies to situations not covered by private nor public law.

Visitors form a unique subset of administrative law. They are largely subtracted from administrative law rules because the jurisdiction is traditionally exclusive. Courts can only review on the narrow ground of ultra vires the visitor's jurisdiction. Within that jurisdiction, the visitor is supreme. A 'wrong' decision is not amenable to review.

When judges visit, then, they move beyond a simple trial or judicial review. They do not judge in the adversarial model, nor are they looking for a reasonable or correct decision. A judge sitting as a visitor can make any order to correct abuses or lacunae in the charity. This is a powerful tool with respect to prisons because it eschews the confining limits of legal procedure.

I briefly review this jurisdiction and its application in Canadian law before turning to prisons and the interpretation of the Corrections and Conditional Release Act ("CCRA").


Visitors: a potted history

That divided church was incapable of affording an impartial judicature; the controversy was solemnly tried in five successive tribunals, which were appointed by the emperor; and the whole proceeding, from the first appeal to the final sentence, lasted above three years. A severe inquisition, which was taken by the praetorian vicar and the proconsul of Africa, the report of two episcopal visitors who had been sent to Carthage, the decrees of the councils of Rome and of Arles, and the supreme judgment of Constantine himself in his sacred consistory, were all favourable to the cause of Caecilian; and he was unanimously acknowledged by the civil and ecclesiastical powers as the true and lawful primate of Africa.

- Edward Gibbon, The Decline and Fall of the Roman Empire 1:21


Visitors originate in Roman practise carried over by the Catholic church into canon law, where the institution subsists today (e.g. can. 396). A visitor is responsible for the proper administration of a foundation created out of it bounty. Almost all the cases on this point relate to colleges and universities. Justice Holt describes the phenomenon in Philips v Bury ([1694] 90 Eng. Rep. 1294):

private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and therefore if there be no visitor appointed by the founder, I am of the opinion that the law doth appoint the founder and his heirs to be visitors. The founder and his heirs are patrons, and not to be guided by the common known laws of the kingdom. But such corporations are, as to their own affairs, to be governed by the particular laws and constitutions assigned by the founder. [...] the law gives him and his heirs a visitatorial power, that is, an authority to inspect their actions, and regulate their behaviour, as he pleaseth (1299).

Justice Holt's comments remain the leading statement of this law today, although other cases have expounded upon the jurisdiction in England and in Canada (for which, see the below list). The visitor's power is absolute within its jurisdiction: common law and equity courts traditionally decline to interfere, but a mandamus will lie against a visitor that refuses to exercise jurisdiction when a member of its foundation has a right of appeal to the visitor (The King and Blythe, [1699] 5 Mod 404).

The more critical implication of Justice Holt's opinion is that visitors are a law unto themselves within the limits of their jurisdiction. They have the power to inspect and reform their charities as they deem fit. This power exists because the founder invests their property in the charity; the bequest must be administered for all time according to the founder's wishes. This law has been confirmed through the years (Green v Rutherford, [1750] 1 Ves Sen 463; Thomson v the University of London, [1864] 10 The Law Times 403), even if courts are reluctant to acknowledge the jurisdiction (e.g. Page v Hull University Visitor, [1993] 1 All ER 97).

A few more rules that are drawn out of the cases define the office:

  • No specific words are needed to constitute a visitor; where the founder's intention is to found a charity and imbue it with statutes, its intention is also to create power of supervision unless otherwise expressly provided (Attorney General v Talbot, [1747] 3 Atk 663; Saint John’s College, Cambridge v Todington, [1757] 1 Burr 158);
  • A transaction that relates to the internal operation of the charity (e.g. admission of fellows to a college) is a transaction reviewable by the visitor, for it involves the rules on which the visitor sits as judge (idem);
  • So long as the visitor acts within its jurisdiction, the courts will decline to introduce a remedy (Attorney General v Dulwich College, [1841] 4 Beav 255);
  • The visitor's jurisdiction arises as a trust between the founder and the charity's administrators, and a court can amend the visitor's jurisdiction by amending the trust when the trust becomes impossible of performance (Attorney General v The Deadham School, [1857] 23 Beav 350).

English courts and visitors have generally recognized these rules in the twentieth century (for which, see the below list of cases).


Application in Canadian Law

Visitors quietly exist in Canadian law. Colonial governments created visitors to supervise charities founded out of the Queen's gift or a legislative grant. A notable example remains McGill University, whose visitor is the Governor General. The University of Toronto was similarly endowed, with the Lieutenant-Governor as visitor until 1901, when the Board of Governors was granted all the Crown's powers in respect of the University. Colleges similarly benefit from visitors: Massey College is visited by an individual elected to the post (charter, art. 10[d]). Beverley McLachlin is its current visitor and is described as 'the College ombudsman'. Justice McLachlin shares her time as a visitor with Queen's College, Cambridge. Incidentally, Queen's statutes describe the office's modern role as a private court of appeal (art. 39).

Colonial governments' close involvement with this jurisdiction has changed courts' approach to the office, but we unfortunately have too few reasoned judicial statements to hand. The most considered debate occurred in 1885. Re Wilson saw a college professor ejected from King's College, Halifax by the Dalhousie University Board of Governors. The visitor was the Bishop of Nova Scotia, who sat on the Board. The ejected professor sought judicial review; the University put the visitor's exclusive jurisdiction up against the case.

The critical issue in this instance was determining the rights of the founder, whose rights were created by statute. The Court found that the Legislative Assembly had founded both college and university; the visitor was a statutory delegate supervising the charity for the assembly. Justice John Thompson sums this law up:

How does the case stand with this College? It has no founder, in the sense of the English law. It was a public corporation, established by the Legislature of the Province. It was incorporated by a public statute in 1789. I say a public statute, because the statute has all the features, and complies with the usual tests by which public acts are distinguished, -- dealing with the public revenue, reciting that it is for public utility, etc (1 NSR 180, 193-4).

This view was taken up by the Lieutenant-Governor of New Brunswick's commissioned visitor in Isaac v University of New Brunswick:

The continuation of the Office of the Visitor by a public statute, for a publicly incorporated educational institution, emphasizes the unique nature of the University of New Brunswick. The University has the full power and authority to promote and carry out the work of a university but, as a public institution, it is subject to the scrutiny of the Legislature responsible for its continued existence. The Office of the Visitor allows the University to maintain its independence, without undue public interference, while providing for public accountability ([1992] 130 NBR (2d) 382, para. 30).

A modern view of visitors in Canada thus accepts them as ombudspersons. When visitors are created by the legislature in a public statute (see the Interpretation Act, s. 9, for a definition of private statutes), they serve the legislature's interest as a private court of appeal and a supervisor of the Crown's funds that vest in the charity.


Interpreting the CCRA

Section 72 of the CCRA creates a right to visit prisons in federal jurisdiction, but it is unclear what the right might entail. Canada's prisons have no record of visitation, although a great amount of legislative history connects the right in section 72 with the ancient powers of visitors. A single case, R v Taylor, unites old and new. The Newfoundland and Labrador Court of Appeal decided a sentencing appeal and interpreted section 13 of the Prisons Act to imply a judges' right to shape sentences to individual offenders' circumstances. For ease of comparison, I reproduce section 13 alongside section 72 of the CCRA:

13. A judge of the Court of Appeal or the Trial Division, a justice of the peace or a member of the House of Assembly may, at reasonable times, visit and inspect the penitentiary.

//

72. Every member of the House of Commons, every Senator and every judge of a court in Canada has the right to

(a) enter any penitentiary,

(b) visit any part of a penitentiary, and

(c) visit any inmate, with the consent of the inmate,

subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

This wording, though of course different, appears to imply the same rights. Judges and legislators may enter prisons and conduct an inspection.

Justice White interprets the Newfoundland and Labrador provision by 'in a modern context':

Visitation must mean more than the right to have tea with the warden. The language of s. 13 of the Prisons Act makes it clear that it is also a power to inspect. There is no point in having a power to inspect unless one can act on the results of the inspection. The information gathered in the course of inspection must be capable of being used for the purposes of the person gathering the information.

...

a judge may use the results to inform him or herself of conditions at the prison so that in the process of sentencing a particular offender he or she can ensure that a disposition suitable to the circumstances of the particular offender is arrived at. ... As noted in the quotation from Blackstone set out above, the power is a power to visit, inequity "and correct". The concept contains a dispositive element; the power is not merely to facilitate information gathering in the abstract (paras. 33-34 [all emphasis original]).

Justice White's read of the visitor's jurisdiction relies on a series of concepts:

  • The legislature is presumed to know all of the law, any facts relevant to the legislation's operation, and the meaning of all terms of art (2011 SCC 53, para. 45; 2004 NLCA 12, paras. 37-8);
  • The legislature's use of a legal term without qualification incorporates the term's common law meaning into the statutory scheme ([1988] 1 SCR 914, para. 25);
  • The Interpretation Acts (NFLD and Canada) provide judges appointed to visit prisons with all powers ancillary to accomplishing that purpose; and
  • Legislation is always remedial and must receive a liberal construction, even when pre-existing principles are being codified ([1999] 1 SCR 688, paras. 31-4; Interpretation Acts).

These principles, though unstated in Justice White's decision, seem implied because he gives visitors' common law powers a liberal construction to achieve the Prisons Act's purpose: supplying adequate judicial and legislative supervision over penal institutions. The visitor's public function as an agent of the legislature takes on renewed significance in the penal regime because the executive branch and prison authorities possess near-absolute power over incarcerated offenders.


History of prison visitors

If any doubt exists about the CCRA's antecedents, English practise and colonial legislation shows that Canadian legislatures have always understood visitors' rights in the prison context.

Prisons have been referred to as charities since at least the thirteenth century. John Selden’s edition of Fleta, a manual of government and common law, describes the Crown’s charitable role as officium autem elemosinarii est, fragmenta diligenter colligere, et ea distribuere singulis diebus egenis (EEBO Wing / F1290A, bk 2.23 [the eleemosynary office is, however, to diligently collect the ruins and piece them together every day to distribute to the poor]). Prisons are numbered among charities in this text.

This statement burgeoned over time into a division between county prisons administered by justices of the peace and common gaols administered by the Crown’s sheriffs. This distinction appears in Rex v Eastaff, where a county justice sought to visit a common gaol where men accused of treason were held. The prison keeper refused the justice admission because he was not one of the county’s visiting magistrates and because the Secretary of State’s warrant committed the prisoners to close custody. They were not permitted to speak with anyone. The justice indicted the keeper for refusing to permit visitation under a prison statute. The question was whether a county justice, whose authority extended to county affairs, was permitted to visit a royal prison. The jury ruled that the justice had no right to visit ([1818] Gow 138). The reporter appends a note by a Francis Ludlow Holt, onetime reporter of nisi prius, who explains that houses of correction created by Elizabethan poor laws differ from common law gaols erected under the prerogative (e.g. [1601] 43 Eliz. 1, c. 2). Justices visit the former; sheriffs superintend the latter, with a right of supervision perhaps accruing to justices of superior courts of common law jurisdiction (Eastaff, 155-60).

Canadian colonies adopted this legal formula when they created prisons via statute. Exchequer is nowhere mentioned in these acts, which instead commissions justices of the peace for each county, inspectors of prisons, or appointees of the executive councils as visitors. Prince Edward Island legislation framed this commission in general terms ‘for carrying into effect the provisions of this Act’ (RSPEI 1849 [12 Vict.], c 12, s. 3). These justices were to visit each prison in their county and were superintendent over the county sheriff (ss. 8-9). In Nova Scotia, the Board of Works, of which the ‘financial secretary’ was a member, appointed its members to visit the penitentiary (RSNS 1851, c 24, s. 1; c 25, ss. 4-5). New Brunswick issued commissions to judicial and municipal officers in Saint John, who were required to visit the city's house of correction (SNB 1841, c 44, ss. 9-10). Upper Canada had prison inspectors, but the Governor, judges, queen’s counsel, and members of the legislature could visit at pleasure while three formal visitors appointed by the Crown saw to day-to-day affairs (RS Prov-Can 1859, c 110; c 111, ss. 53, 61). Whether a justice of the peace, an inspector, or a judge, visitors exercised their reforming powers in the Crown’s name to assist the Crown’s penal charity.

At Confederation, the situation was little changed: visitors continued to exercise the Crown’s power, and Parliament adopted the Province of Canada’s model of visitation. The Parliament of Canada inherited what in England were called common gaols; provinces retained control over county institutions. Federal penitentiaries were overseen by three directors appointed by the Governor-in-council (SC 1868, c 75, s. 3). These officials were responsible for general regulations and had the power to inspect each institution (ss. 7-9). The directors were visitors in all but name, yet they were enjoined against interfering with the wardens’ management of each institution. The visitor’s primary function, to sit in appeal of prison officials, was reserved to:

the Governor General of Canada, the Lieutenant governor of any of the Provinces composing the Dominion of Canada, any Member of the Privy Council of Canada, any Member of the Executive Council of any of the said Provinces, and Member of the Parliament of Canada or of any of the Local Legislatures, any Judge of any Court of Record in Canada or in any of the said Provinces, and any Queen’s Counsel (s. 42).

The legislature nowhere indicates that the right to visit implied more than a right to physical presence at an institution, yet such a right does not accord with the technical words used in the colonial legislation predating Confederation. Nova Scotia’s, New Brunswick’s, and Canada’s legislation all recognized visitors’ traditional powers prior to Confederation. Parliament’s choice of words imported this device by authorizing prison inspectors to collect information while preserve wardens’ executive power in each prison. The power to hear appeals from prison officials was reserved to political and judicial actors across branches of government.

These actors continued in the right to visit, with some modification, since this first corrections statute down to the present. An interpretation of the legislation with regard to the formalities of legislative drafting and context lead to the conclusion that Parliament understands the visitor's role at prisons. It has incorporated the jurisdiction into the corrections scheme to limit unfettered executive power.


The Judge as visitor - practical application

A judge is vested with a personal power to visit and thus exercises it as persona designata. This phrase denotes personal jurisdiction vested through an act of Parliament naming individuals to exercise powers. Most provinces have abolished persona designata vesting in superior court judges; the court instead exercises these powers under regular procedures. Justice White's approach in R v Taylor, for example, notices the office to ground the argument that courts may depart from strict sentencing and prison rules to accommodate the individual offender's needs. Another approach to visitation is by application to any superior court.

Provincial courts are one avenue, but a compelling policy argument pushes litigants to apply to Federal Court to exercise visitatorial powers: a single bench hearing these cases is better placed to develop the law of prison visitation in the modern era. Diffusing visitation across provincial jurisdictions inevitably confuses the standards on which a visitor will judge and intervene in prisons. The federal bench travels; it can accomplish the visitor's role. It is also resident in Ottawa, with its own appellate bench. It thus has an attractive confluence of mobility and fixed location.

The Federal Courts Act does not abolish persona designata, nor do its rules. Applicants should, however, use the procedure contemplated by rule 300 (with reference to rule 4 if they encounter any guff). An application is made out under the authority of section 72 of the CCRA. The request is that a judge of the Court visit a prison to grant relief. The request must specify the nature of the dispute and the order (or orders) sought, but it is unclear what law needs to be adduced. Visitors are pure creatures of equity that, as has been said, are not constrained by general legal rules. A judge sitting as a visitor thus does not have to decide the matter with reference to those general principles. The CCRA and its regulations must be considered; all policies and procedures enacted in the prison are subject to amendment or reversal if the visitor deems necessary.


Conclusion

Based on the research that I have conducted to date and summarized above, prison visitors are alive and well. Courts may refuse to apply these rules because they are of quite ancient extraction. The rules do, however, continue to serve a purpose in our law: courts ought to follow them.

Prisons are an easy case for visitors. Visitors' twin purposes in this context are to ensure that prisoners are treated correctly and to act as stewards over public institutions. In most cases, the executive and legislature will adequately supervise prisons; courts need not get involved too often. Rare cases will, however, require the intervention of a judicial officer with plenipotentiary powers to ensure prisoner safety and public confidence in the penal system. Courts should not shy away from this task, and offenders and their allies ought to take advantage of this law.


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Cases defining the jurisdiction

This list is not exhaustive. If you find a fresh Canadian or English (or Commonwealth - there are cases in Australia and New Zealand that I have not cited), please leave the citation in comments below.


England/Britain

Attorney General v Dulwich College, [1841] 4 Beav 255.

Attorney General v Talbot, [1747] 3 Atk 663.

Attorney General v The Deadham School, [1857] 23 Beav 350.

Attorney-General v Magdalen College, Oxford, [1847] 10 Beav 402.

Attorney-General v Middleton, [1751] 2 Ves Sen 327.

Casson v University of Aston in Birmingham, [1982] 1 All ER 88.

Dr Robert’s Case, [1666] 2 Keb 103.

Green v Rutherford, [1750] 1 Ves Sen 463.

John Colt & William Glover vers Richard Evesque de Coventry & Lichfield, [1612] 72 Eng Rep 982.

Page v Hull University Visitor, [1993] 1 All ER 97.

Parkinson’s Case, [1689] Holt, KB 143.

Pleadings in the Case of Sutton’s Hospital, [1613] 10 Co Rep 1b.

R (on the Application of Michael Ferguson) v Visitor of the University of Leicester, [2003] WL 22656617.

R (On the Application of Varma) v Duke of Kent, [2004] ACD 81.

R v Episcopum Eliensis, [1750] 1 Wils KB 266.

R v Middlesex Asylum Justices, 2 QB 433.

Rex v Eaststaff, [1818] Gow 138.

Saint John’s College, Cambridge v Todington, [1757] 1 Burr 158.

The King against Laughton, [1814] 2 M & S 324.

The King against New-College in Oxford, [1671] 2 Lev 14.

The King and Blythe, [1699] 5 Mod 404.

Thomas v University of Bradford, [1985] 1985 Westlaw 311443.

Thomas v University of Bradford, [1992] 1 All ER 964.

Thomson v the University of London, [1864] 10 The Law Times 403.

Thorne v University of London, [1966] 2 QB 237.


Canada

Ahmed v Dalhousie University, 2014 NSSC 330.

Blasser v Royal Institution for the Advancement of Learning, 1985 CarswellQue 88.

Forestell v University of New Brunswick, 1988 CarswellNB 138.

Isaac v University of New Brunswick, [1992] 130 NBR (2d) 382.

King v University of Saskatchewan, 1968 CanLII 524.

Langlois v Rector and Members of Laval University, 1973 CarswellQue 242.

Marsh v Huron College, 1880 CarswellOnt 57.

McWhirter v Governors of the University of Alberta, [1975] 62 DLR (3d) 684.

Mohamed v University of Saskatchewan, 2006 SKQB 23.

Mycyk v University of Saskatchewan, 2007 CanLII 303.

Pearlman v University of Saskatchewan (College of Medicine), 2006 CanLII 105.

Prokopchuk v University of Saskatchewan, 1985 CanLII 2453.

Re Polten and Governing Council of the University of Toronto et al, [1975] 59 (3d) DLR 197.

Re Vanek and Governors of the University of Alberta, [1975] 57 DLR (3d) 595.

Re Wilson, [1885] 18 NSR 180.

Riddle v University of Victoria, [1979] 2774 CanLII .

The University of Saskatchewan and MacLaurin (Re), [1920] 2 WWR 823.

Webb v Simon Fraser University, 1978 CarswellBC 594.

Wong v University of Toronto, 1990 CanLII 8102.

Wong v University of Toronto, 1992 CarswellOnt 916.