Pornography in Prisons: Naraine v. Canada (Attorney General), 2015 FC 934

Naraine v. Canada (Attorney General), 2015 FC 934 recently provoked the breathless — and breathtakingly misleading — headline: “Prison can’t take porn channels away from inmates, federal court rules“.

The trigger for the Naraine litigation was apparently a parliamentary hearing on sexual harassment in the federal workplace before the Standing Committee on the Status of Women. Following comments made at the hearing about the availability of pornography in prisons, the correctional service sprang into action and cancelled the cable package that allowed Mr. Naraine to watch explicit late-night material. Naraine grieved the cancellation decision, explicitly invoking his Charter rights, to no avail.

Gagné J. held that the grievance decision was unreasonable. Her particular concern was an absence of evidence of any sexual harassment problems in the institution in which Naraine is held or, indeed, relating to Naraine himself: “There is no specific evidence relating to the conditions or circumstances of Mr. Naraine’s own institution, nothing about the management issues discussed in the impugned decision” (at para. 36). Reference was only made to the testimony provided to the parliamentary committee (at para. 42).

In addition, the grievance decision did not reflect an appropriate balancing of the correctional service’s statutory objectives with Naraine’s Charter rights. Only one paragraph of the decision discussed this issue (at para. 50) and did so inadequately:

The impugned decision states that one of the main objectives of the CCRA is to provide a safe and healthful working environment for correctional officers, free of practices that undermine a person’s sense of personal dignity and that serious concerns were expressed about the undermining of the personal dignity and security of female correctional officers presumably at Archambault institution. However, the Commissioner does not consider the specific context of the objectives at issue and there is no evidence that the safety and healthful working environment of female correctional officers at Archambault is jeopardized…it is impossible for this Court to assess whether or not the decision has a disproportionate impact on the guaranteed right or Charter value as no real balancing exercise was conducted by the Commissioner; the purported effort to balance the objectives of the CCRA with the restriction on the guaranteed right or Charter value is unsupported by the evidence available…(at paras. 49, 52).

Back the matter should go, Gagné J. held, for a fresh decision. Hence why the breathless headline is misleading: Gagné J. did not say the pornographic channels could not be removed, just that the decision here was defective. But the headline writers rarely grasp the nuances of administrative law.

This content has been updated on August 17, 2015 at 13:34.