Correctional Service of Canada, et al. v. Mercier, et al.

The Correctional Service of Canada published a directive that prohibited prisoners from smoking in indoor and outdoor areas in federal prisons. Prisoners challenged the validity of the directive. The Federal Court ruled in favor of the prisoners. The Federal Court of Appeals held that the Commissioners' directive was within its power and upheld the ban.

Correctional Service of Canada, et al. v. Mercier, et al., 2010 FCA 167, Federal Court of Appeals (2010).

  • Canada
  • Jun 21, 2010
  • Federal Court of Appeals
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Parties

Plaintiff

  • Attorney General of Canada
  • Correctional Service of Canada

Defendant

  • Benoit Guimond
  • Claude Ranger
  • Daniel Dusseault
  • Daniel Lévesque
  • Daniel Patry
  • Denis Thibault
  • François Landcop
  • Gaétan St.-Germain
  • Gérald Matticks
  • Jean Deschênes
  • Jean Rauzon
  • Jean-Pierre Duclos
  • Patrick Mercier
  • Patrick Rochefort
  • Pierre Thériault
  • Raymond Landry
  • Régis Labbée
  • Richard Dion
  • Stéphane Fortin
  • Stéphane Linteau

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The Judge’s role was to determine whether the statutory grant of authority given to the Commissioner allowed him to adopt the Directive. However, the Judge did not see his role as so limited and proceeded to determine de novo whether the outdoor smoking ban was justified in the circumstances. In this regard, I refer particularly to his Reasons at paragraphs 27, 28, 33 and 34, where, in effect, the Judge appears to have substituted his view to that of the Commissioner as to whether a total ban on smoking should be implemented in federal correctional facilities. For example, at paragraph 28 of his Reasons, the Judge indicates that in his opinion, the total ban on smoking will result in the adoption of additional “control measures” and that he has doubts as to the effectiveness of these measures. As Strayer J.A. made clear in Jafari, supra, at page 602, it is not open to “a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court’s policy preferences”. "
"I am therefore satisfied that the Commissioner’s Directive clearly falls within the ambit of paragraph 97(c) of the Act in that it purports to take steps to ensure that the living and working conditions of inmates and employees of CSC are safe and healthful. Thus, the Directive falls within the scope of the powers given to the Commissioner under the Act and the Regulations."
"Third, there can be no doubt that in enacting the first Directive, the Commissioner was attempting to prevent both inmates and employees from smoking indoors within federal correctional facilities so as to protect non-smokers. There can also be no doubt that the purpose of the Directive and, more particularly, the prohibition in respect of outdoor smoking, is an attempt by the Commissioner to prevent indoor smoking and, thus, to protect the health of non-smokers within the confines of federal correctional facilities. The stated purpose of the Directive clearly finds support in the Assistant Commissioner’s recommendation of June 21, 2007, which explains why the first Directive was enacted, i.e.: “[T]his policy was developed in response to the expanding body of scientific evidence demonstrating the potential harmful effects of second-hand smoke and the increasing concern about exposure by employees, offenders and other individuals inside federal penitentiaries.” (Appeal Book, Vol. 2, p. 328). The Assistant Commissioner’s recommendation also explains why the first Directive was not successful in meeting its objective. More particularly, the recommendation sets out the number of reported infractions to the indoor smoking ban, outlining the ways and means taken by inmates to smuggle cigarettes into the correctional facilities and the fabrication of smoking devices to replace matches and lighters which CSC had either removed or confiscated."