The appeal is allowed, the decision of the Motions Judge dated December 12, 2001, is set aside and the application for judicial review by Mr. Royer is allowed. Section 71 of the Corrections and Conditional Release Regulations is declared ultra vires its enabling legislation; the decision by the Chairperson of the Disciplinary Court concerning the charges in dispute is set aside, with costs in favour of Mr. Royer in this Court and in the Trial Division.

"Robert Décary"

J.A.

Certified true translation

Mary Jo Egan, LLB

Date: 20030121

Docket: A-17-02

Neutral Citation: 2003 FCA 25

CORAM: DÉCARY J.A.

NOËL J.A.

PELLETIER J.A.

BETWEEN:

RÉMI ROYER

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

Hearing held at Montréal, Quebec, on January 16, 2003.

Judgment delivered at Ottawa, Ontario, on January 21, 2003.

REASONS FOR JUDGMENT BY: DÉCARY J.A.

CONCURRED IN BY: NOËL J.A.

PELLETIER J.A.

Date: 20030121

Docket: A-17-02

Neutral Citation: 2003 FCA 25

CORAM: DÉCARY J.A.

NOËL J.A.

PELLETIER J.A.

BETWEEN:

RÉMI ROYER

Appellant

and

ATTORNEY GENERAL OF CANADA

REASONS FOR JUDGMENT

DÉCARY J.A.:

[1] The issue in this appeal is the legality of section 71 of the Corrections and Conditional Release Regulations (the Regulations), which provides that an inmate who has been found guilty of a certain disciplinary offence may be required "to provide a [urine] sample each month until three consecutive negative monthly samples have been provided."

The facts

[2] On September 22, 2000, the appellant, an inmate, was asked to submit to urinalysis as part of a random selection urinalysis program under paragraph 54(b) of the Corrections and Conditional Release Act (the Act). The result of the analysis was positive.

[3] On October 25, 2000, the appellant was found guilty of "tak[ing] an intoxicant into [his] body" pursuant to paragraph 40(k) of the Act. He was fined $25 under paragraph 44(1)(d) of the Act. He was also informed that, as of November 2000, he would have to provide a sample each month until three consecutive negative monthly samples had been provided, in accordance with section 71 of the Regulations.

[4] On November 27, 2000, the appellant received a "Notification to Provide a Urine Sample" under section 71 of the Regulations. He refused to comply and was charged with "disobey[ing] a justifiable order of a staff member" within the meaning of paragraph 40(a) of the Act. He was ultimately acquitted because of a technical irregularity. That notice is not in dispute.

[5] On December 18, 2000, and on January 11, February 27 and March 13, 2001, he received further notices issued under section 71 of the Regulations. These are the notices in dispute. Each time, he refused to comply on the ground that section 71 of the Regulations is ultra vires. Each notice of charge referred to paragraph 40(l) of the Act.

[6] On April 4, 2001, following a disciplinary hearing for all the above-mentioned notices of charge, the independent Chairperson found the appellant guilty of four offences, fined him $50 and ordered him to serve ten weekends of detention.

[7] The appellant filed four applications for judicial review, which were heard together. On December 12, 2001, the Motions Judge dismissed the four applications. This appeal from that dismissal consolidates the four files.

The principal applicable statutory and regulatory provisions

[8] The following are the applicable provisions of the Act and the Regulations:

Corrections and Conditional

Release Act

Discipline

. . .

Loi sur le système correctionnel et la mise en liberté sous condition

Régime disciplinaire

[...]

39. Inmates shall not be disciplined otherwise than in accordance with sections 40 to 44 and the regulations.

39. Seuls les articles 40 à 44 et les règlements sont à prendre en compte en matière de discipline.

40. An inmate commits a disciplinary offence who

(a) disobeys a justifiable order of a staff member;

. . .

(k) takes an intoxicant into the inmate's body;

(l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;

. . .

40. Est coupable d'une infraction disciplinaire le détenu qui_:

a) désobéit à l'ordre légitime d'un agent;

[...]

k) introduit dans son corps une substance intoxicante;

l) refuse ou omet de fournir l'échantillon d'urine qui peut être exigé au titre des articles 54 ou 55;

[...]

44. (1) An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following:

(a) a warning or reprimand;

(b) a loss of privileges; (c) an order to make restitution;

(d) a fine;

(e) performance of extra duties; and

(f) in the case of a serious disciplinary offence, segregation from other inmates for a maximum of thirty days.

. . .

44. (1) Le détenu déclaré coupable d'une infraction disciplinaire est, conformément aux règlements pris en vertu des alinéas 96i) et j), passible d'une ou de plusieurs des peines suivantes :

a) avertissement ou réprimande; b) perte de privilèges;

c) ordre de restitution;

d) amende;

e) travaux supplémentaires;

f) isolement pour un maximum de trente jours, dans le cas d'une infraction disciplinaire grave.

[...]

Search and Seizure

. . .

Fouilles et Saisies

[...]

54. Subject to section 56 and subsection 57(1), a staff member may demand that an inmate submit to urinalysis

(a) where the staff member believes on reasonable grounds that the inmate has committed or is committing the disciplinary offence referred to in paragraph 40(k) and that a urine sample is necessary to provide evidence of the offence, and the staff member obtains the prior authorization of the institutional head;

(b) as part of a prescribed random selection urinalysis program, conducted without individualized grounds on a periodic basis and in accordance with any Commissioner's Directives that the regulations may provide for; or

(i) a prescribed program or activity involving contact with the community, or

(ii) a prescribed substance abuse treatment program.

54. L'agent peut obliger un détenu à lui fournir un échantillon d'urine dans l'un ou l'autre des cas suivants :

a) il a obtenu l'autorisation du directeur et a des motifs raisonnables de croire que le détenu commet ou a commis l'infraction visée à l'alinéa 40k) et qu'un échantillon d'urine est nécessaire afin d'en prouver la perpétration;

b) il le fait dans le cadre d'un programme réglementaire de contrôle au hasard, effectué sans soupçon précis, périodiquement et, selon le cas, conformément aux directives réglementaires du commissaire;

c) l'analyse d'urine est une condition - imposée par règlement - de participation à un programme ou une activité réglementaire de désintoxication ou impliquant des contacts avec la collectivité.

55. Subject to section 56 and subsection 57(2), a staff member, or any other person so authorized by the Service, may demand that an offender submit to urinalysis (a) at once, where the staff member or other authorized person has reasonable grounds to suspect that the offender has breached any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs, in order to monitor the offender's compliance with that condition; or (b) at regular intervals, in order to monitor the offender's compliance with any condition of a temporary absence, work release, parole or statutory release that requires abstention from alcohol or drugs.		55. L'agent ou toute autre personne autorisée par le Service peut obliger un délinquant à lui fournir un échantillon d'urine : a) soit sur-le-champ lorsque la permission de sortir, le placement à l'extérieur ou la libération conditionnelle ou d'office sont assortis de conditions interdisant la consommation de drogues ou d'alcool et que l'agent ou la personne a des motifs raisonnables de soupçonner la contravention à une de ces conditions; b) soit régulièrement lorsque la permission de sortir, le placement à l'extérieur ou la libération conditionnelle ou d'office sont assortis de conditions interdisant la consommation de drogues ou d'alcool.
56. Where a demand is made of an offender to submit to urinalysis pursuant to section 54 or 55, the person making the demand shall forthwith inform the offender of the basis of the demand and the consequences of non-compliance.		56. La prise d'échantillon d'urine fait obligatoirement l'objet d'un avis à l'intéressé la justifiant et exposant les conséquences éventuelles d'un refus.
57. (1) An inmate who is required to submit to urinalysis pursuant to paragraph 54(a) shall be given an opportunity to make representations to the institutional head before submitting the urine sample.		57. (1) Lorsque la prise est faite au titre de l'alinéa 54a), l'intéressé doit, auparavant, avoir la possibilité de présenter ses observations au directeur.
(2) An offender who is required to submit to urinalysis at regular intervals pursuant to section 55 shall be given reasonable opportunities to make representations to the prescribed official in relation to the length of the intervals.		(2) De même, dans les cas où il est tenu de fournir régulièrement un échantillon d'urine en application de l'article 55, il doit avoir la possibilité de présenter à la personne désignée par règlement des observations au sujet de l'espacement des prises.
Regulations 96. The Governor in Council may make regulations . . . (m) prescribing the procedures to be followed in conducting a urinalysis and the consequences of the results of a urinalysis; . . .		Règlements 96. Le gouverneur en conseil peut prendre des règlements_: [...] m) précisant la procédure à suivre pour les analyses d'urine et les conséquences des résultats de ces analyses; ...
Corrections and Conditional Release Regulations Urinalysis Testing . . .		*Règlement sur le système* correctionnel et la mise en liberté sous condition Prises et analyses d'échantillons d'urine [...]

71. Where an inmate is found guilty of a disciplinary offence referred to in paragraph 40(k) of the Act, the inmate may, in addition to any sanction imposed pursuant to subsection 44(1) of the Act, be required to provide a sample each month until three consecutive negative monthly samples have been provided.

71. En plus de toute peine qui lui est infligée aux termes du paragraphe 44(1) de la Loi, le détenu qui est déclaré coupable d'une infraction disciplinaire visée à l'alinéa 40k) de la Loi peut être tenu de fournir un échantillon d'urine tous les mois jusqu'à ce qu'il ait fourni trois échantillons négatifs successifs.

Analysis

[9] In the part of the Act entitled " Search and Seizure", sections 46 to 67 establish what appears to me to be a complete statutory code with respect to "searches of inmates", "searches of cells" and "searches of visitors."

[10] Searches of inmates are dealt with in sections 47 to 58: strip search (s. 48), frisk search (s. 49), search using X-ray machine, and urinalysis (ss. 51 to 57).

[11] Section 54 identifies three situations in which an inmate may be required to submit to urinalysis. They are described in subsections (a), (b) and (c). The wording of section 54 does not leave any doubt: the inmate is required to submit in those situations only. The list of situations in section 54 is therefore exhaustive. Moreover, each of these situations is subject to specific substantive requirements. The urinalysis under paragraph (a) must be authorized by the institutional head; in paragraph (b) it may only be done "as part of a prescribed random selection urinalysis program" (my emphasis); in paragraph (c) it may only be required where urinalysis is "a prescribed requirement for participation in a prescribed program or activity . . . " (my emphasis).

[12] In addition to the three situations described in section 54, two other situations are identified in paragraphs 55(a) and (b) where inmates leave the institution.

[13] In short, where an inmate does not leave the institution, there is no requirement to submit to urinalysis other than in the three situations identified in section 54.

[14] Urinalysis is subject to procedural safeguards. Section 54 provides that a demand for urinalysis may be made by a "staff member" who, in paragraph (a) must have obtained the prior authorization of the institutional head and have "reasonable grounds" or, in paragraphs (b) and (c), is acting as part of a prescribed program. Section 56 requires that a notice be given stating the basis of the demand and the consequences of non-compliance. These "consequences", according to the notices in the record, are the commission of the offence described in paragraphs 40(a) or 40(l) of the Act. Under subsection 57(1), an inmate who is required to submit to urinalysis under paragraph 54(a) is given "an opportunity to make representations to the institutional head." Under subsection 57(2), an inmate in situations described in section 55 is given "reasonable opportunities to make representations to the prescribed official in relation to the length of the intervals."

[15] Paragraph 40(l) of the Act clearly states that an inmate who "fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55" commits a disciplinary offence. This paragraph does not impose a sanction on an inmate who refuses to provide a urine sample that may be required under any other section of the Act, which suggests that such a provision does not exist.

[16] Moreover, the Regulations also contain very strict procedural requirements regarding urinalysis. Section 61 of the Regulations gives a very limited power to delegate to the institutional head who is acting under section 54 of the Act or under subsection 57(1) of the Act. Section 62 of the Regulations provides that an inmate who is required to submit to urinalysis under paragraph 54(a) or subsection 57(1) of the Act has the right to have his objections reviewed by the institutional head of the penitentiary or the urinalysis program co-ordinator before being required to give a sample. Section 63 of the Regulations clarifies the random selection program set out in paragraph 54(b) of the Act. Section 64 of the Regulations defines the programs in paragraph 54(c) of the Act. Section 65 of the Regulations determines the frequency of urinalysis for those inmates under section 55 of the Act. Sections 66 and 67 of the Regulations describe the procedures for the collection and testing of urine samples.

[17] It is clear from this description that Parliament, and subsequently the Governor in Council, have taken great pains to put strict limitations on urinalysis. The reason for such caution is obvious. A urine sample is a "search" within the meaning of section 8 of the Canadian Charter of Rights and Freedoms, and in order for a search to be found reasonable, the Supreme Court of Canada has stated, in particular, that it must be authorized by law and that the manner in which the search itself has been carried out must be reasonable (R. v. Stillman, [1997] 1 S.C.R. 607, para. 25; see also Fieldhouse v. Kent Institution (1995), 98 C.C.C. (3d) 207 (B.C.C.A.)). The respondent in this case did not contend that the search had been carried out pursuant to a power derived from common law. Although it is true that in a penitentiary the expectation of privacy is reduced to a minimum (see Weatherhall v. Canada (Attorney General), [1993] 2 S.C.R. 872 (sub nom. Conway), it is also true that urinalysis must be authorized by legislation and that Parliament must ensure that it is not unreasonable.

[18] After this long detour, I now turn my attention to section 71 of the Regulations, which is the basis for this dispute.

[19] Counsel for the respondent maintains that section 71 of the Regulations is authorized by paragraph 96(m) of the Act, which provides that regulations may be made "prescribing the procedures to be followed in conducting a urinalysis and the consequences of the results of a urinalysis." No other regulatory power is cited.

[20] The scope of the regulatory power conferred by paragraph 96(m) is limited. This paragraph is addressed to urinalysis, not the taking of urine samples. It necessarily deals with urinalyses of urine samples taken under other provisions of the Act, because it does not confer any power to authorize the taking of a urine sample. Because it deals with urine samples that of necessity have already been taken, it has nothing to do with any kind of refusal to provide a urine sample.

[21] Moreover, paragraph 96(m) allows "the consequences of the results of a urinalysis" to be prescribed. This phrase is limited. It does not include "the consequences of non-compliance", which is covered in section 56 of the Act, nor the "consequence of the sentence", which is covered in paragraph 4(e) of the Act.

[22] In summary, paragraph 96(m) does not give the Governor in Council the power to order that a urine sample be given, to regulate a refusal to provide a sample, to create a new offence, to impose a sanction or to define the consequences of a sanction.

[23] In this context, section 71 of the Regulations arrives like a fox in the henhouse.

(a) It is said to be "in addition to any sanction imposed." Whether it constitutes a sanction or a consequence of a sanction, it is not authorized by paragraph 96(m) of the Act.

(b) It deals with an inmate who has been found guilty of the offence referred to in paragraph 40(k) of the Act. The requirement that it imposes is therefore not a consequence of the result of a urinalysis within the meaning of paragraph 96(m) of the Act, but a consequence of a finding of guilt.

(c) It imposes a requirement to provide a urine sample, which is in addition to the already exhaustive list of requirements set out in sections 54 and 55 of the Act.

(d) It creates by implication a new offence: refusing to provide the urine sample demanded under this section. The offence of refusal created by paragraph 40(l) of the Act referred only to the taking of urine samples under sections 54 and 55 of the Act.

(e) It does not specify who must authorize the search nor who is to conduct it. However, Parliament, in sections 54 and 55 of the Act, and the Governor in Council, in sections 5, 6, 61, 62 and 65 of the Regulations, have specifically stated who may exercise these powers.

(f) It does not specify what procedural safeguards, if any, are available to the inmate. Even if we accept that these safeguards would by implication be the same as the Act and the Regulations provide elsewhere, we would be unable to know which ones apply, because they vary according to the section of the Act under which the search is conducted.

(g) An inmate may be found guilty of the offence referred to in paragraph 40(k) of the Act without a urine sample having been taken and, a fortiori, without the result of a urinalysis. One need only think of an inmate who has been seen taking an intoxicant and who has pleaded guilty. Paragraph 96(m) of the Act does not confer any regulatory power with respect to such an inmate.

(h) It appears that the only offence resulting from a breach of section 71 of the Regulations is the one described in paragraph 40(a) of the Act: disobeying a justifiable order of a staff member. Given that section 61 of the Regulations does not grant any power to a staff member, one may well wonder whether there is a "justifiable order" or an order of a "staff member." In any event, it would be odd if Parliament had intended that the refusal to provide a urine sample demanded under sections 54 or 55 constitutes a particular offence (paragraph 40(l)), but that the Governor in Council, by implication, is permitted to make another type of refusal an offence, not of refusal but of disobedience.

[24] The conclusion is inescapable: section 71 of the Regulations collides head-on with the letter and spirit of the Act. It is ultra vires its enabling legislation.

[25] I would allow the appeal, set aside the decision of the Motions Judge and allow the application for judicial review by Mr. Royer; I would declare section 71 of the Corrections and Conditional Release Regulations ultra vires its enabling legislation, and I would set aside the decision by the Chairperson of the Disciplinary Court concerning the charges in dispute, with costs in favour of Mr. Royer in this Court and in the Trial Division.

"Robert Décary"

J.A.

"I concur.

Marc Noël, J.A."

"I concur.

J.D. Denis Pelletier, J.A."

Certified true translation

Mary Jo Egan, LLB

FEDERAL COURT OF CANADA

APPEAL DIVISION

SOLICITORS OF RECORD

DOCKET: A-17-02

STYLE OF CAUSE: Rémi Royer v. A.G.C.

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: January 16, 2003

REASONS FOR JUDGMENT BY: Décary J.A.

CONCURRED IN BY: Noël J.A.

Pelletier J.A.

DATED: January 21, 2003

APPEARANCES:

Daniel Royer FOR THE APPELLANT

Nadia Hudon FOR THE RESPONDENT

SOLICITORS OF RECORD:

Labelle, Boudrault, Côté et Ass.

434, rue Sainte-Hélène

Montréal, Quebec FOR THE APPELLANT

Morris Rosenberg

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE RESPONDENT

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Royer v. Canada (Attorney General), 2003 FCA 25

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2003 FCA 25