Date: 20070907
Docket: T-1729-06
Citation: 2007 FC 893
Montréal, Quebec, the 7th day of
September 2007
Before:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
FRANÇOIS BOUCHER
and
PIERRE-PAUL
DANDURAND
Applicants
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
François
Boucher and Pierre-Paul Dandurand made an application to the Court for
declaratory relief under paragraph 18(1)(a) of the Federal Courts Act,
R.S.C. 1985, c. F-7, asking it to declare to be ultra vires Directive
No. 259 (“the Directive”) and any other policy or rule of the Commissioner of
Correctional Service Canada (CSC), prohibiting smoking within
cells and private family visiting facilities.
Facts
[2]
Exposure
to second-hand smoke has been a concern of the CSC for several years, though until
recently smoking was permitted in certain areas of federal penitentiaries,
including in particular inmates’ cells.
[3]
Following
consultations with various groups concerned, the CSC announced on July 12, 2005
that it intended to eliminate exposure to second-hand smoke inside all federal
penitentiaries by January
31, 2006.
[4]
At the
time of the application for declaratory relief at bar, the applicants were
inmates in the Cowansville Institution and, like other inmates, had been
informed and consulted on this objective as well as being notified of the
assistance available to help them stop smoking or reduce their dependence on
tobacco. On January 3, management informed them that as of January 23 smoking
would be prohibited in private family visiting (PFV) units. Additionally, they
were notified at the same time that as of January 31, 2006 the prohibition
would extend to all areas inside buildings, including cells. However, the
prohibition did not apply to areas outside the buildings which inmates might
use during the day.
[5]
The CSC Commissioner’s Directive, published on
January 31, 2006, came into effect and stated its purpose in section 1 as
follows:
To enhance health and wellness by eliminating exposure to
second hand smoke indoors in all federal correctional institutions, including
in motor vehicles under the control of the Service.
[6]
In section
10, the Directive further provided that:
Where inmates are found smoking indoors in institutions,
they will be subject to the inmate disciplinary process.
It accordingly specified penalties for offences.
[7]
The
applicants, who were longtime smokers, were serving terms in the Cowansville
federal penitentiary when they filed their action. Their application for
declaratory relief sought the partial cancellation of the prohibition so they
could continue smoking both in their cells and in areas reserved for PFVs.
[8]
However,
they did not dispute the Department of Health’s scientific information
regarding the harmful effect of second-hand smoke on their health.
[9]
The
applicants complained of limited daily outdoor time and limited opportunities
to smoke. Further, they said at least once a month inmates were prohibited from
leaving their cells for six to seven hours when management closed the penitentiary
for a general search, an administrative inquiry or a power shutdown. Security
incidents occurred regularly to interrupt their time outside and compel them to
return to their cells sooner than scheduled. For several hours inmates thus did
not have the right to go out or to smoke in their cells, which caused them anxiety
attacks and anguish.
[10]
The CSC felt it was advisable to offer and make
available to inmates a program to help stop or reduce smoking. This assistance
was accompanied by pharmaceutical products for those who wished to have them.
[11]
However,
the applicants wanted to continue to smoke. Like many inmates, they were the
subject of disciplinary reports for smoking in their cells despite the Directive.
The penalties, set out in section 44 of the Corrections and Conditional
Release Act, S.C. 1992, c. 20 (CCRA), ranged from a simple warning to fines
or even punitive segregation.
Issue
[12]
Is the CSC
Commissioner empowered to adopt the Directive, or any other rule, prohibiting
smoking in a cell and in premises used for private family visits (PFVs)?
[13]
The
applicants maintained that the CSC is not empowered by the Non-Smokers’
Health Act, R.S.C. 1985 (4th Supp.), c. 15 (NSHA), to prohibit inmates from
smoking in cells and PFVs.
Corrections and Conditional Release Act (CCRA)
[14]
The
applicants challenged the CSC’s right to prohibit inmates from smoking in cells
and areas reserved for PFVs. Contrary to this argument, the Court considers
that the CCRA empowers the CSC Commissioner to adopt the Directive.
[15]
Sections
97 and 98 of the CCRA provide that:
|
97. Subject to this Part and
the regulations, the Commissioner may make rules
(a)
for the management of the Service;
(b)
for the matters described in section 4; and
(c)
generally for carrying out the purposes and provisions of this Part and the
regulations . . .
|
97. Sous réserve de la présente
partie et de ses règlements, le commissaire peut établir des règles
concernant:
a) la gestion du Service;
b) les questions énumérées à
l'article 4;
c) toute autre mesure d'application
de cette partie et des règlements.
|
|
|
98. (1) Les règles établies en
application de l'article 97 peuvent faire l'objet de directives du
commissaire . . .
|
[16]
Additionally,
the CCRA allows correctional authorities to impose disciplinary penalties for
failure to comply with a directive:
|
40. An inmate commits a disciplinary offence who
. . . . .
(r) wilfully disobeys a
written rule governing the conduct of inmates . . .
|
40. Est coupable d’une infraction disciplinaire le
détenu qui :
. . . . .
r) contrevient délibérément à une règle écrite
régissant la conduite des détenus . . .
|
[17]
Accordingly,
the CSC Commissioner is empowered to adopt standards in the form of directives
dealing with CSC management, matters falling
under section 4 and any other measure giving effect to Part I of the CCRA (ss.
2 to 98).
[18]
To protect
health in the penitentiary environment, the CCRA provides that:
|
70. The Service shall take all
reasonable steps to ensure that penitentiaries, the penitentiary environment,
the living and working conditions of inmates and the working conditions of
staff members are safe, healthful and free of practices that undermine a
person’s sense of personal dignity.
|
70. Le Service prend toutes
mesures utiles pour que le milieu de vie et de travail des détenus et les
conditions de travail des agents soient sains, sécuritaires et exempts de
pratiques portant atteinte à la dignité humaine.
|
[19]
Although
this provision does not specifically mention the second-hand effect of tobacco
smoke, it nevertheless requires the CSC to take the necessary steps to ensure
that penitentiaries, the penitentiary environment, the living and working
conditions of inmates and the working conditions of staff members are safe and
healthful. Seen in conjunction with sections 97 and 98 of the Act, supra,
this provision is a sufficient basis for the Commissioner’s authority to adopt
the Directive at issue here.
[20]
Other
provisions of the CCRA exist to reinforce the CSC’s mandate, indicating its purpose as
follows . . .
[21]
Thus,
section 4 of the Act describes the operating principles of the Correctional Service
as follows:
|
4. The principles that shall
guide the Service in achieving the purpose referred to in section 3 are
. . . . .
(e) that offenders retain the
rights and privileges of all members of society, except those rights and
privileges that are necessarily removed or restricted as a consequence of the
sentence . . .
|
4. Le Service est guidé, dans
l’exécution de ce mandat, par les principes qui suivent :
. . . . .
e) le délinquant continue à
jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux dont la
suppression ou restriction est une conséquence nécessaire de la peine qui lui
est infligée . . .
|
[22]
The
comparison made by the applicants of inmates’ rights and privileges with those
of ordinary individuals is based on section 4 of the CCRA, but appears to
overlook the fact that while ordinary individuals are entitled to smoke inside
their residences, they also have the now recognized right not to be exposed to
second-hand tobacco smoke in their residences. In the same way, the Court
cannot ignore the interests of non-smoking inmates or non-smoking officers
working in institutions, who are entitled to have “penitentiaries, the
penitentiary environment, the living and working conditions . . . [be] safe
[and] healthful”.
[23]
Accordingly,
the CSC Commissioner cannot be blamed for considering the harmful effect of
second-hand smoke in drafting the Directive at issue, especially as interested
groups were consulted, the measure was announced in advance and steps were
taken to assist inmates in dealing with the situation well before it came into
effect. No one could therefore complain of being taken by surprise.
[24]
The Court
notes, and counsel for the applicants cannot be unaware of this, that several
decisions dealing with smoking prohibitions in penitentiaries, even more
restrictive than the measures in the action at bar, have been declared valid,
in particular under the Charter (see Regina Correctional Centre v.
Saskatchewan (Department of Justice), [1995] S.J. No. 350 (Sask.
Q.B.) (QL), affirmed on appeal at (2000), 193 Sask. R. 248 (Sask. C.A.); McNeill
v. Ontario (Ministry of the Solicitor
General & Correctional Services), [1998] O.J. No. 2288 (Ont. G.D.) (QL); Saskatoon Correctional Centre v.
Government of Saskatchewan, [2000] S.J. No. 307 (Sask. Q.B.) (QL); Vaughan v. Ontario, [2003] O.J. No. 5304 (Ont.
S.C.J.) (QL); William Head Institution Inmate Welfare Committee v. William
Head Institution, [2003] F.C.J. No. 411 (F.C.) (QL)).
[25]
For these
reasons, the Court must conclude that the CSC Commissioner was empowered to adopt the
Directive or any other rule prohibiting smoking in a cell and within premises
used for PFVs, as this is intra vires the Act.
[26]
The
judgment could stop here. However, since the applicants based their arguments
on the Non-Smokers’ Health Act, R.S.C. 1985 (4th Supp.), c. 15, let us
consider the validity of their argument.
Non-Smokers’ Health Act (NSHA)
[27]
Although
the NSHA is not the chief source of the Commissioner’s authority to adopt the
Directive, the Court cannot, contrary to the arguments made by the applicants,
ignore the fact that the Directive complies in all respects with the Act.
[28]
The NSHA
in fact requires an employer and any person acting on the employer's behalf to
ensure that “persons refrain from smoking in any work space under the
control of the employer” and states that the employer may “designate for
smoking . . . enclosed rooms under the control of the employer other than rooms
normally occupied by non-smokers” (subsections 3(1) and 3(2)).
[29]
The Non-Smokers’
Health Regulations (NSHR), SOR/90-21, provide that the employer may
designate rooms or areas for smokers:
|
4. . . . an employer may
designate the following rooms or areas in a work space under the control of
the employer as designated smoking rooms or designated smoking areas:
(a)
any living accommodation . . .
[Emphasis
added.]
|
4. . . . l'employeur peut,
dans le lieu de travail placé sous son autorité, désigner comme fumoir ou
zone fumeurs les pièces ou aires suivantes:
a) un local d'habitation . .
.
[Non
souligné dans l’original.]
|
[30]
The
applicants argued that the Directive is not consistent with the NSHA, as
inmates’ cells and PFV units are not work spaces within the meaning of
subsection 3(1), but rather places of residence. They accordingly concluded
that a smoking prohibition is not possible in these areas.
[31]
However,
while it is true that the areas may be described as living accommodation, this
does not prevent them being also part of a work space and these living quarters
remain under CSC control, not the control of inmates.
[32]
Further,
the use of the word “may” in section 3 of the NSHA and section 4 of the NSHR
clearly indicates that the employer is not required to designate areas as
smoking rooms. It is one of several options available to the employer.
[33]
Further,
the applicants’ position is contrary to the NSHR, which states in paragraph 4(a)
that the employer, here the CSC, may designate any living
accommodation as designated smoking rooms or designated smoking areas.
Additionally, cells and PFV areas are work spaces for CSC employees, who must
regularly supervise these two areas as well as the entire prison.
Standard of review
[34]
The
parties admitted that the validity of the CSC Directive essentially is a question of
law. The applicable standard of review is accordingly that of correctness. To
succeed, therefore, the applicants must show that the CSC Commissioner did not
have the necessary legal authority to adopt it. Unfortunately for them, the applicants
did not discharge this burden.
[35]
Although
the applicants retain the rights and privileges of all members of society , and
although the Court is very conscious of the psychological or even physical
difficulties which this new policy imposes on them, the fact remains that
sections 97 and 98 of the CCRA give the Commissioner the authority to adopt
standards in the form of directives for management of the CSC. That discretionary power did not appear
out of nowhere. It was preceded by consultations and reasonable notice
accompanied by an offer of assistance to help smokers adjust to the new
Directive and cope with it when the time came.
[36]
For all
these reasons, the Court must dismiss their action against a measure which
proves to be legal, justified and reasonable.
[37]
Under Rule
302 of the Federal Court Rules, SOR/98-106, only one decision should be
challenged in an application for judicial review, even though the action at bar
is in the form of declaratory relief. As the action is focused primarily on the
CSC Commissioner’s Directive, the Court will not rule on any other policy or
rule of the Commissioner prohibiting smoking inside cells and PFV facilities
and will thus confine itself to the Directive.
[38]
The
applicants asked that their application be allowed with costs on the ground
that they are inmates with limited means and the question is an important one
for them and for other inmates in the same situation. They also sought costs in
the event the Court allowed their application. In the contrary case, the respondent
did not see why the applicants should not have to pay costs.
[39]
As the
applicants brought the action at bar in accordance with their rights as
individuals, they must also bear the obligation of any individual who loses a
case, that of paying costs, unless there is some good reason to exempt them
from doing so.
[40]
The
decision may be important to the applicants, but what they were seeking has
already been decided in similar cases. The Court does not see why being inmates
exercising their rights as individuals should give them an exemption from
paying costs which any individual who is not an inmate would have to pay. For
these reasons, the applicants must pay the costs.
JUDGMENT
THE COURT ORDERS AND DIRECTS that
- The application for declaratory
relief at bar is dismissed with costs;
- Directive No. 259 of the CSC
Commissioner is intra vires the Correctional Service of Canada
Commissioner and also consistent with the Non-Smokers’ Health Act
and the Non-Smokers’ Health Regulations.
“Maurice E. Lagacé”
Certified
true translation
Brian McCordick,
Translator
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