Date:
20091023
Dockets: T-533-08
T-1017-08
Citation: 2009 FC 1071
Ottawa, Ontario, October 23, 2009
PRESENT: The Honourable Mr. Justice Martineau
Docket:
T-533-08
BETWEEN:
PATRICK MERCIER
Applicant
and
CORRECTIONAL SERVICE OF CANADA
(represented by the Attorney General of
Canada)
and
ATTORNEY GENERAL OF CANADA
Respondents
Docket: T-1017-08
AND
BETWEEN:
STÉPHANE LINTEAU
JEAN-PIERRE DUCLOS
PIERRE THÉRIAULT
RAYMOND LANDRY
GÉRALD MATTICKS
DENIS THIBAULT
JEAN RAUZON
REGIS LABBEE
RICHARD DION
DANIEL PATRY
DANIEL LÉVESQUE
CLAUDE RANGER
JEAN DESCHÊNES
GAÉTAN ST-GERMAIN
STÉPHANE FORTIN
FRANÇOIS LANDCOP
BENOIT GUIMOND
PATRICK ROCHEFORT
DANIEL DUSSEAULT
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants, all inmates in federal correctional institutions (penitentiaries) at
the time these proceedings for judicial review were instituted, are challenging
the legality of Directive No. 259 – Exposure to Second-Hand Smoke, issued
by the Commissioner of the Correctional Service of Canada (CSC) under the
purported authority of sections 97 and 98 of the Corrections and Conditional
Release Act, S.C. 1992, c. 20 (Act) and published on May 5, 2008 (New Directive 259).
[2]
New Directive 259 prohibits smoking and the possession of smoking items
within the perimeter of federal penitentiaries, including Community
Correctional Centres (CCCs), with the exception of tobacco and ignition sources
necessary for Aboriginal religious and spiritual practices in individual cells,
rooms and groups to the extent safely possible (religious exception).
[3]
It should be noted that in order to address the problem of second-hand
smoke in penitentiaries, a smoking ban in all CSC buildings was instituted on
January 31, 2006. Smoking was not completely banned and inmates were still
permitted to smoke in outdoor areas (Commissioner’s Directive No. 259 – former
version).
[4]
Today, the applicants, who cannot avail themselves of the religious
exception, are asking the Court to declare New Directive 259 void,
unconstitutional or unreasonable, in whole or in part.
[5]
The respondents, the Attorney General of Canada and the CSC, oppose the
present application.
[6]
The application is allowed for the following reasons.
[7]
The means of administrative law raised by the applicants are determinative
in this case.
[8]
Given that this involves the exercise of broad powers of prescription
delegated by Parliament to the Commissioner, significantly affecting the
conditions of detention and the lives of offenders serving sentences in a
penitentiary, the legality of any rule or directive covered by sections 97 and
98 of the Act is subject to the respect for fundamental principles referred to
in sections 3 and 4 of the Act.
[9]
In fact, whether it is a right or a privilege, even while in detention,
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, as set out in paragraph 4(e) of the Act.
[10]
Furthermore, even though section 70 of the Act allows the CSC to take all
reasonable steps to ensure that the living and working conditions of the
inmates and the working conditions of staff members are safe and healthful,
paragraph 4(d) of the Act stipulates that the least restrictive measures be
used.
[11]
In this case, no one is contesting the fact that second-hand smoke is
harmful to the health of others.
[12]
In addition, improving the health and well-being of inmates and officers
could certainly justify removing the right or privilege of smoking inside
the facilities, including cells: Boucher v. Canada (Attorney
General), 2007 FC 893.
[13]
Nevertheless, according to the evidence in the record, smoking outdoors
poses no risk to the health of others.
[14]
In this case, according to the evidence in the record, there is no
rational link between prohibiting inmates from smoking outside of CSC
facilities and the right of non-smokers to not be exposed to second-hand smoke.
[15]
In our free and democratic society, no blanket ban on smoking or
possessing tobacco or smoking items has ever been enacted by Parliament in
order to protect the health of non-smokers from exposure to second-hand smoke.
[16]
Where the Non-smokers’ Health Act, R.S.C. 1985, c. 15 (4th Supp.) (NSHA) applies, the smoking ban for citizens – employees,
visitors, passers-by – is limited to areas inside of federal buildings or
directly outside of the said buildings.
[17]
Moreover, there is no safety requirement to prohibit inmates from smoking
outside of buildings within the perimeter of penitentiaries. In fact, this was
the situation that existed prior to New Directive 259 coming into effect.
[18]
The possession of tobacco and smoking items is not prohibited by the Act.
[19]
Additionally, expressly excluded from the definition of ‘‘intoxicant’’ as
described in subsection 2(1) of the Act are caffeine and nicotine, which means
that tobacco products do not fall under the definition of “contraband”, which
includes ‘‘intoxicants’’ as well as ‘‘any item . . . that
could jeopardize the security of a penitentiary or the safety of persons, when
that item is possessed without prior authorization’’.
[20]
New Directive 259 simply goes too far.
[21]
A total ban on smoking both inside and outside of CSC buildings is at odds
with the Act, as well as being unjustifiable and unreasonable under the
circumstances.
[22]
For many years inmates and correctional officers were free to smoke in
outdoor areas, within the security perimeters of penitentiaries. In fact,
correctional staff are still permitted to smoke on penitentiary premises, that
is, in areas on CSC property to which the inmates do not have access (for
example, the parking lot of an institution).
[23]
In light of the evidence in the record, I am not satisfied that past
difficulties or anticipated future problems in enforcing the indoor smoking ban
by correctional authorities allow the Commissioner to now prohibit smoking
outdoors.
[24]
The respondents, for their part, argued forcefully that the only way to
eliminate second-hand smoke indoors was to eliminate the source itself. In the
Court’s view, this is not a very convincing argument.
[25]
On the one hand, inmates who are eligible for the religious exemption
continue to have the right to smoke and possess certain smoking items.
[26]
On the other hand, almost 75% of inmates are smokers, which creates a
significant internal demand for a product that is sold legally outside of
penitentiaries.
[27]
Of course, the removal or restriction of the right or privilege of smoking
enjoyed by all members of society is not a necessary consequence of the
sentences served by inmates in penitentiaries.
[28]
Practically speaking, if the administrative inconveniences are taken into
account, the blanket ban on smoking or possessing smoking items simply means
that extra control measures (the effectiveness of which remains doubtful and
yet to be demonstrated to the Court), must now be implemented by correctional
authorities to stamp out the contraband of cigarettes and tobacco products that
continue to be sold legally outside of penitentiaries and which are easily
available to any ordinary citizen.
[29]
The fact remains that if an ordinary citizen is caught smoking inside a
federal building in violation of the NSHA or its statutory regulations, that
person is committing an offence and liable to pay a fine if found guilty.
[30]
For offenders serving time in penitentiaries, the deliberate violation of
a written regulation governing the conduct of inmates, which may include
violating the indoor smoking ban, constitutes a disciplinary offence, rendering
an inmate who is found guilty of such an offence liable 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.
A fine or
restitution may be collected in the prescribed manner (see sections 40 to 44 of
the Act).
[31]
It must be remembered that the disciplinary system established by sections
40 to 44 of the Act and regulations is a proven system which respects the rule
of law and seeks to encourage inmates to conduct themselves in a manner that
promotes the good order of the penitentiary, through a process that contributes
to the inmates’ rehabilitation and successful reintegration into the community
(section 38 of the Act).
[32]
As can be seen, the current disciplinary system allows for different
levels of punishment, depending on the seriousness of the offence, in keeping
with promoting the good order of the penitentiary.
[33]
Measures necessary to protect non-smokers from exposure to second-hand
smoke in penitentiaries should be the least restrictive possible.
[34]
In this case, considering the stated purpose of the correctional system
and its guiding principles set out in sections 3 and 4 of the Act, the evidence
in the record does not allow the Court to conclude that the outdoor smoking ban
is a preventive measure that can be justified in an objective and rational way
by the Commissioner and correctional authorities, who have full authority under
the Act and the Corrections and Conditional Release Regulations, SOR/92-620,
to enforce the indoor smoking ban in federal buildings under their authority.
[35]
Having weighed the evidence and arguments submitted by the parties, I find
that the applicants are entitled to a declaratory judgment ruling that
prohibiting inmates from smoking outdoors within the perimeter of
penitentiaries, including CCCs, is null, void, and contrary to the Act. The Commissioner’s
New Directive 259 is declared invalid to the extent that a complete ban on
smoking and possessing tobacco and smoking items is contrary to the Act and to
this judgment.
[36]
Given this conclusion, it is not necessary to rule on the scope and
application of sections 7, 12 and 15 of the Canadian Charter of Rights and
Freedoms subsidiarily raised in this case by the applicants.
[37]
In the event that the Court should issue a declaration of invalidity, as
is the case here, the representatives of the Attorney General of Canada have
requested that the Court suspend the effect of any such declaration so as to
allow the Commissioner to review the policy on second-hand smoke and make the
appropriate changes to the invalidated directive so that it complies with the
Act and the Court’s judgment. A period of 90 days from the Court’s final
judgment seems reasonable under the circumstances.
[38]
Given the result, the applicants will be entitled to costs.
JUDGMENT
IT IS DECLARED, ORDERED AND ADJUDGED THAT:
1.
The application is allowed;
2.
Prohibiting
inmates from smoking outdoors within the perimeter of penitentiaries, including
CCCs, is null, void, and contrary to the Corrections and Conditional Release Act (Act). Directive No. 259 –
Exposure to Second-Hand Smoke, issued by the Commissioner of the Correctional
Service of Canada and published on May 5, 2008, is invalid to the
extent that a complete ban on smoking and possessing tobacco and smoking items
is contrary to the Act and to this judgment;
3.
The effect of the declaration mentioned in the preceding
paragraph is suspended for a period of 90 days following the final judgment of
the Court; and
4.
The applicants are entitled to costs.
‘‘Luc Martineau’’
Certified
true translation
Sebastian
Desbarats, Translator
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