Guérin v. Canada (Attorney General)

Guérin v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-01-29
Neutral citation
2018 FC 94
File numbers
T-144-16, T-1892-14, T-2101-14, T-2137-14, T-2222-14, T-756-14
Notes
A correction was made on March 28, 2018.
Digest
Decision Content
Date: 20180129
Dockets: T-1892-14
T-756-14
T-2101-14
T-2137-14
T-2222-14
T-144-16
Citation: 2018 FC 94
Ottawa, Ontario, January 29, 2018
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
JEAN GUÉRIN
JARROD SHOOK
JAMES DRUCE
JOHN ALKERTON
MICHAEL FLANNIGAN
CHRISTOPHER ROCHELEAU
JOHANNE BARITEAU
GAÉTAN ST-GERMAIN
JEFF EWERT
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] Six applications for judicial review were made by nine applicants. All of them challenge the regime for payment of inmates in penitentiaries, but from different angles.
[2] However, all six applications have the same procedural basis. Under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, the applicants are seeking a declaratory judgment and making a claim for relief.
[3] Specifically, three instruments are being challenged before this Court:
a) The Corrections and Conditional Release Regulations (SOR/92-620) as modified in 2013 (SOR/2013-181) [the Regulations]
b) Commissioner’s Directive 730: Offender Program Assignments and Inmate Payments
c) Commissioner’s Directive 860: Offender’s Money
[4] No legislative provisions are being put to a constitutional challenge. In fact, the inmate pay system implemented in 2013 is attacked from several sides, but never by challenging the enabling statute:
a) It is argued that the Regulations and Commissioner’s Directives 730 and 860 are inconsistent with the letter, spirit, and objectives of the Corrections and Conditional Release Act, S.C. 1992, c. 20 [the Act].
b) It is argued that the pay system, as described in the Regulations and Commissioner’s Directive’s 730 and 860, violates the Canadian Charter of Rights and Freedoms (Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c 11 [the Charter]:
i) A breach of the liberty and security of the person under section 7 is alleged.
ii) A breach of the right not to be subjected to any cruel and unusual treatment or punishment under section 12 is alleged.
c) It is argued that the Regulations and Commissioner’s Directives 730 and 860 are inconsistent with section 7 of the United Nations Standard Minimum Rules for the Treatment of Prisoners. It is also argued that these domestic instruments are inconsistent with Conventions 29 and 105 of the International Labour Organization.
d) It is argued that there is an employer–employee relationship with the inmates working in penitentiaries, such that Part III of the Canada Labour Code (RSC 1985, c L-2) applies to them. This would mean that the respondent would have to reimburse the amounts deducted under the Regulations and Commissioner’s Directives. It is also argued that there is an employer–employee relationship and that the pay decrease should be considered a constructive dismissal. Lastly, it is argued that subsection 104.1(7) of the Regulations is unreasonable. This is the provision that allows an institution head to reduce a deduction or payment provided for elsewhere when certain conditions are met. Moreover, the applicants are asking that the decisions denying this relief measure be struck down.
I. Preliminary remarks
[5] Before proceeding any further, it is best to do a bit of housekeeping relating to the makeup and management of these files.
[6] Following two orders by Prothonotary Tabib, who was responsible for managing the proceedings, several files were grouped together to be addressed and heard together. The first order was rendered on October 26, 2015, to group six files and nine applicants. An order rendered on February 18, 2016, and amended on March 8, 2016, abandoned one of the six files, but replaced it with another one. These six cases presented by nine applicants are the ones before this Court.
[7] It was ordered that all exhibits be filed with docket T-1892-14, assigned to Jean Guérin. The dockets are organized as follows:
T-1892-14 Jean Guérin
T-756-14 Jarrod Shook
James Druce
John Alkerton
Michael Flannigan
T-2101-14 Christopher Rocheleau
T-2137-14 Johanne Bariteau
T-2222-14 Gaétan St-Germain
T-144-16 Jeff Ewert
[8] The submissions made by the applicants’ lawyers are valid for and apply to all of them. Accordingly, although the applications for judicial review in the cases before this Court were signed by different lawyers, these lawyers divided up the work to take turns dealing with submissions that apply to everyone. This way of dividing the work avoided repetition and made for an orderly hearing. This Court is grateful for the parties’ lawyers for dividing the work in this way. A copy of the reasons for decision in the main docket will be filed with each docket. The decision and reasons apply to all dockets.
II. Facts
[9] The facts at the origin of this case are as follows. The entire case revolves around inmates’ pay in federal institutions. The applicants are complaining that their pay was reduced by 30% in October 2013. They submit that these deductions are ultra vires the enabling statute, or unconstitutional or in violation of the Canada Labour Code, or that they constitute a “constructive dismissal”. They also argue that these deductions are inconsistent with certain international instruments.
[10] Before 1981, the pay system in place was considered a “reward for good conduct and general participation in programs, rather than a direct return for work performance at an assigned job” (Inmate Pay System, Correctional Service of Canada [CSC], April 1981). There were five levels of pay from $1.30/day to $2.30/day.
[11] CSC decided to create a new inmate pay system in 1981. The brochure shows that CSC wanted to pay inmates for their work, but also to pay the inmates who were participating in education and vocational programs.
[12] Different pay scales were created for work, vocational programs and education, and inmates in psychiatric centres; the work and the education and vocational program categories had breakdowns by institution security level (maximum, medium, and minimum), with four pay levels each. There were also four pay levels for inmates in psychiatric centres. Inmates who did not work received $1.60/day. Inmates who worked earned a minimum of $3.15/day in maximum security institutions and up to $7.55/day in minimum security institutions (it is explained that the daily rate of pay is higher in minimum security institutions to motivate inmates to achieve a lower security classification through their behaviour). The scale for inmates in vocational or education programs went from $3.15/day to a maximum of $6.45/day. For inmates who worked, compensation was based on their job, since jobs were listed, defined, and classified. It was possible to progress within each level in two increments of $0.55/day.
[13] The minimum wage of $3.15 per day apparently corresponded to the disposable income of a single person earning the “federal” minimum wage of $3.50/hour in 1981.
[14] The system introduced in 1981 was the most generous, since subsequent revisions never raised the pay under this system. Rates were decreased in 1986 (the evidence does not state by how much). In 1989, the different rates for different institution security levels were eliminated. In 1994, Commissioner’s Directive 730 was amended to link inmates’ pay rates to their individual correctional plan objectives.
[15] Currently, the rates set out in Commissioner’s Directive 730 are as follows:
Level A: $6.90/day
Level B: $6.35/day
Level C: $5.80/day
Level D: $5.25/day
An allowance of $1.00/day is paid to inmates not participating in any programs. An allowance of $2.50/day is paid to inmates who are unable to participate in any programs for reasons outside their control. Each inmate’s pay level is reviewed under the terms of the Directive, taking into account several criteria: punctuality, performance in meeting expectations, participation in the correctional plan, general behaviour, etc. Inmates can thus move between pay levels.
[16] Inmates are paid independently of the program in which they participate under their individual correctional plan. One inmate may be paid a higher daily rate for a vocational program than another inmate with a work assignment. The correctional plan is established at the beginning of the period of incarceration and implemented under Commissioner’s Directives 705 and 705-6. It establishes the objectives and expected gains to be achieved in the inmate’s rehabilitation. It is used to determine the programs that could contribute to these goals. Inmates’ progress is evaluated throughout their sentence.
[17] Correctional programs are structured interventions to reduce recidivism by targeting factors related to offenders’ criminal behaviour. According to Michael Bettman, Director General, Offender Programs and Reintegration, CSC, there are different types of programs (August 24, 2015, affidavit). Examples include behaviour modification and accountability programs.
[18] There are structured and unstructured social programs for offenders to acquire skills, knowledge, and experience to contribute to their personal and social growth, sometimes referred to as soft skills or interpersonal skills. They range from programs promoting integration in the community to recreation and leisure. Educational programs provide basic skills up to post-secondary level (however, in these cases, inmates must pay for post-secondary education). Offenders without a grade 12 diploma are invited to participate in this type of program in their correctional plan. There are also vocational (job training) programs. Mr. Bettman testified that they try to develop not only technical skills, but also soft skills: communication, teamwork, organization, time management, and trustworthiness.
[19] Most jobs available fall into two categories. Some jobs are directly related to the institution, such as the canteen, cleaning, and even inmate representation. There are also thousands of offenders participating in CORCAN. Considering the focus on this program, it is worth describing.
[20] CORCAN is a program within the Correctional Service of Canada that aims to rehabilitate offenders (affidavit from Lynn Garrow, Chief Executive Officer). It is set up as a special operating agency within CSC, a designation within the government that allows it to be exempt from certain government policies so that it can be managed on more of a business model to fund its operations. This special operating agency is still a part of CSC. It produces goods and services sold mainly to federal departments (e.g. office furniture, textiles), but also to other organizations.
[21] Ms. Garrow testified that approximately 60% of offenders have employment needs when they enter the federal prison system. These are the needs that CORCAN aims to address. CORCAN is there to increase employability, which may include work habits like getting up and going to work every morning and working as part of a team. It also allows offenders to earn occupational certification and apprenticeships. Not all CORCAN jobs are ideal for entry into the labour market, but they all promote employability through interpersonal skills and work habits.
[22] I find that the importance of promoting employability is contained in the Regulations, which states this purpose in section 105.
[23] CORCAN may be part time, especially because some offenders participate in more than one program at a time. Moreover, CORCAN is not what pays offenders participating in this program. Payment is granted for participation in a variety of programs, including CORCAN. Ms. Garrow noted that for certain apprenticeships with CORCAN, students have to pay. As stated above, the evidence at the hearing showed that the maximum pay is not granted for participating in CORCAN, but for the quality of participation in a variety of programs. Before October 2013, it was possible for CORCAN participants to receive individual and group performance bonuses: for a period of 10 days, pay could go from $69.00 to $138.00. However, these bonuses no longer exist. They were eliminated in October 2013. This is one of the measures disputed in this application.
[24] Of course, the fact that base pay has remained constant over time has diminished purchasing power. This situation has been criticized by the Correctional Investigator, a person appointed by the Governor in Council (section 158 of the Act) whose mandate is to investigate problems related to the Commissioner’s decisions. They produce an annual report under section 192 of the Act. In his 2005–2006 report, the Correctional Investigator noted that per diem amounts for work and participation in programs had not risen in close to 20 years. The canteen basket costing $8.49 in 1981 cost $61.59 in 2006. The Investigator concluded that the per diem amounts for work and programs were insufficient and recommended they be increased immediately.
[25] The applicants are arguing that pay, which had long been decreased, was significantly reduced in 2013. On May 9, 2012, the Minister of Public Safety announced the measures that are being disputed before this Court:
a) the per diem amount was reduced to reflect room and board costs, which the Minister framed as increased accountability of offenders for the costs of their detention;
b) administrative costs associated with managing the inmate telephone system would now be charged to the inmate population;
c) incentive pay for CORCAN programs was eliminated.
These measures reduced pay by 30% in total.
[26] These measures were implemented through the modification of a few instruments:
a) Amendment of the Corrections and Conditional Release Regulations (SOR/2013-181) to make it possible to deduct administrative costs associated with the offender telephone system from pay. Subsection 104.1(2) now reads as follows:
6. Subsection 104.1(2) of the Regulations is replaced by the following :
6. Le paragraphe 104.1(2) du même règlement est remplacé par ce qui suit :
(2) Deductions may be made under paragraph 78(2)(a) of the Act for the purpose of reimbursing Her Majesty in right of Canada for
(2) Les retenues peuvent être effectuées en vertu de l’alinéa 78(2)a) de la Loi à titre de remboursement à Sa Majesté du chef du Canada :
(a) the costs of food, accommodation and work-related clothing provided to the offender by the Service ; and
a) des frais engagés pour l’hébergement et la nourriture du délinquant, ainsi que pour les vêtements de travail que lui fournit le Service ;
(b) the administrative costs associated with the access to telephone services provided to the offender by the Service.
b) des frais d’administration associés à l’accès aux services téléphoniques que fournit le Service au délinquant.
The amendment was made to add telephone system costs to the deductions for accommodation, food, and work clothing, which were already permitted under section 104.1 of the Regulations. Before October 2013, the Commissioner’s Directive already allowed for deductions from pay. They amounted to 25% of pay in excess of $69 per 2 weeks (affidavit from Gregory Hall, Senior Director, Technical Services, November 17, 2014).
b) Commissioner’s Directives 730 and 860 produced the results under dispute:
Commissioner’s Directive 860 was amended on October 1, 2013, to set the deduction at 22% of pay for accommodation and food. The same Directive was amended again on October 24, 2013, to add a deduction of 8% for telephone service costs. This brought deductions to 30% of pay, the maximum permitted under the Act since 1995.
Commissioner’s Directive 730 was amended as well, on October 1, 2013, to eliminate performance bonuses.
III. Submissions of the parties
[27] Of course, the applicants are complaining that pay has decreased over time, but they seem to be focusing mainly on the changes to their pay made in October 2013. They say their “income” is unfair and insufficient. They need their pay to purchase items essential to physical and psychological health. They claim that they are required to cover health care and personal hygiene. They want access to sufficient food, they say. Maintaining family connections suffers from diminished resources. Offenders have to pay the victim surcharge under section 737 of the Criminal Code (RSC 1985, c C-46), and the possibility of amassing some savings for their future release has faded from sight. Feeling exploited and unvalued, they suffer from physical and psychological insecurity, which is worsened by the contraband and violence in institutions. A summary of testimonies (using affidavits) is attached to the decision [See Appendix A].
[28] As indicated above, the applicants are advancing the following legal bases to justify their remedy:
a) The amendments to the Regulation and Commissioner’s Directives are inconsistent with the enabling statute. They are ultra vires.
b) These same amendments are unconstitutional, as they violate sections 7 and 12 of the Charter, without falling under section 1 as reasonable limits that can be justified in a free and democratic society:
The amendments to the Regulations are allegedly a breach of the right not to be subjected to any cruel and unusual treatment or punishment under section 12.
The applicants argue that the amendments violate the right to liberty and security of the person, and that this is inconsistent with the principles of fundamental justice.
c) The amendments are allegedly in violation of international instruments pertaining to the treatment of inmates. This argument seems to have transformed itself at the hearing into an item to consider in the examination of the principles of fundamental justice under section 7 of the Charter, principles to which the applicants never referred.
d) There is allegedly an employer–employee relationship with the offenders, such that the Canada Labour Code would apply. This would result in a requirement to maintain payments at the levels that existed before October 2013. At the very least, the offenders allegedly have an employer–employee relationship allowing for relief for constructive dismissal due to the decreases.
[29] The Attorney General disputes each and every argument presented. Not only is there full compliance with the exercise of discretion conferred by Parliament under section 78 of the Act, but there is also no constitutional recognition of minimum pay that would result in a violation of sections 7 and 12 of the Charter. For section 7, there was not so much as an alleged demonstration of the principles of fundamental justice required for a violation. Moreover, there is no employer–employee relationship in this case. The pay encourages participation in correctional programs: Part III of the Canada Labour Code does not apply.
[30] Furthermore, the Attorney General vigorously defends the penitentiary incarceration system. Noting that protecting society remains paramount under the Act (section 3.1 of the Act), the government presents significant evidence concerning the products and services provided to offenders without cost. In fact, they note that in 2013–14, it cost $115,000.00 per inmate per year.
[31] The evidence tends to show that the food provided to offenders complies with Canada’s Food Guide; the clothing and hygiene items are more than sufficient, according to the government. The detailed affidavits of five senior officials, four of whom work in institutions, are convincing, according to the respondent, and were unchallenged. This evidence demonstrates that, although not luxurious, the offenders’ needs are met adequately. If there are gaps, they were not demonstrated in any way in the case presented to this Court. The list of clothing and replacements available is clear evidence of this. The same applies to access to hygiene items and food.
[32] The Act requires CSC to provide essential health care (section 86 of the Act). Nowhere in the evidence do we see how this care is allegedly not provided. We may speculate that some health care is not provided appropriately in some instances. But the case before this Court does not reveal any such failure, and it is far from clear how the rates of pay decreased by the October 2013 amendments could affect health care delivery. No systemic failure has been proven. At best, the record shows that one of the applicants complained of having to purchase certain painkillers even though some are prescribed to him, of having to cover the cost of a mouth guard suggested by the institutional dentist but deemed non-essential, and that his losing weight (3.3 kg) resulted in him needing to purchase new clothing outside the replacement periods. Lastly, I note exhibit Z-1, filed with consent, entitled “National Essential Health Services Framework”. This document, produced by CSC in July 2015, provides a long list of which healthcare services, medical equipment and supplies, and dental service standards are approved or not.
IV. Analysis
[33] Two comments must be made before we examine the applicants’ legal arguments.
[34] First, this Court is not sitting to consider the wisdom of the policy decisions made by the government. Case in point, the system implemented by the government at the time in 1981 seems more generous to inmates in penitentiaries. It also follows a different philosophy. As it explicitly states, the document “Inmate Pay System” submitted as evidence, while not forgetting those in education and vocational programs, aims to “provide inmates with pay according to their job. Under this plan those inmates who participate in assigned employment including education and training, agriculture, institutional services, industrial production, and other recognized employment assignments, will receive a rate of pay designed to recognize their contribution”. The plan was to compile a list of all jobs and their descriptions and to assign pay rates to each one. The evidence does not indicate the extent to which this policy was implemented in the years that followed. However, what we do know is that Parliament adopted subsection 78(1) of the Corrections and Conditional Release Act in 1992 (SC 1992, c 20), establishing a correspondence between payment and participation in CSC programs and social reintegration programs. It was not a question of compensation for work performed, as was the case in 1981. This subsection still reads the same today:
Payments to offenders
Rétribution
78 (1) For the purpose of
78 (1) Le commissaire peut autoriser la rétribution des délinquants, aux taux approuvés par le Conseil du Trésor, afin d’encourager leur participation aux programmes offerts par le Service ou de leur procurer une aide financière pour favoriser leur réinsertion sociale.
(a) encouraging offenders to participate in programs provided by the Service, or
[EN BLANC/BLANK]
(b) providing financial assistance to offenders to facilitate their reintegration into the community,
[EN BLANC/BLANK]
the Commissioner may authorize payments to offenders at rates approved by the Treasury Board.
[EN BLANC/BLANK]
This is a policy decision, meaning this Court can intervene only if it violates the Constitution. We seem to have moved from payment for work performed to payment for participation in programs promoting social reintegration; this is Parliament’s decision and is not in dispute before this Court.
[35] Second, the Court is required to consider the parties’ legal arguments based on the evidence in the record. It is possible that, in a particular case, the government is not fulfilling its duties under the Act. As the Attorney General concedes, the ad-hoc decision is reviewable (for example, Charbonneau v Canada (Attorney General), 2013 FC 687). In this case, the applicants, collectively, are challenging a lot more. The remedies sought are not so much the result of the application of certain measures in a given case under specific circumstances as they are a direct attack on the system put in place in 2013.
[36] Thus, the applicants are not arguing the unconstitutionality of section 78 in its current form, in place since 1995. Subsection 78(1) has already been reproduced, and was enacted in 1992. Originally, subsection 78(2) already allowed for deductions from payments. In 1992, it read as follows:
(2) Payments provided for pursuant to subsection (1) may be subject to deductions in accordance with any regulations made under paragraph 96(z.2) and any Commissioner’s Directives.
(2) La rétribution autorisée peut faire l’objet de retenues en conformité avec les règlements d’application de l’alinéa 96z.2) ou les directives du commissaire.
The wording of subsection 78(2) was amended in 1995 (S.C. c. 42, s. 20) to prescribe the purposes for which deductions may be made and the maximum amount that may be deducted. Where payment is made—which suggests, of course, that Parliament is considering the possibility that no payment has been made—the Act has provided for more than 20 years that deductions of up to 30% from payments may be made as “reimbursement” of the costs of accommodation, food and work-related clothing. Subsection 78(2) now reads as follows:
20. Subsection 78(2) of the Act is replaced by the following:
20. Le paragraphe 78(2) de la même loi est remplacé par ce qui suit :
(2) Where an offender receives a payment referred to in subsection (1) or income from a prescribed source, the Service may
(2) Dans le cas où un délinquant reçoit la rétribution mentionnée au paragraphe (1) ou tire un revenu d’une source réglementaire, le Service peut :
(a) make deductions from that payment or income in accordance with regulations made under paragraph 96(z.2) and any Commissioner’s Directive; and
a) effectuer des retenues en conformité avec les règlements d’application de l’alinéa (96z.2) et les directives du commissaire;
(b) require that the offender pay to Her Majesty in right of Canada, in accordance with regulations made pursuant to paragraph 96(z.2.1) and as set out in a Commissioner’s Directive, an amount, not exceeding thirty per cent of the gross payment referred to in subsection (1) or gross income, for reimbursement of the costs of the offender’s food and accommodation incurred while the offender was receiving that income or payment, or for reimbursement of the costs of work-related clothing provided to the offender by the Service.
b) exiger du délinquant, conformément aux règlements d’application de l’alinéa (96z.2.1), qu’il verse à Sa Majesté du chef du Canada, selon ce qui est fixé par directive du commissaire, jusqu’à trente pour cent de ses rétribution et revenu bruts à titre de remboursement des frais engagés pour son hébergement et sa nourriture pendant la période où il reçoit la rétribution ou tire le revenu ainsi que pour les vêtements de travail que lui fournit le Service.
The amendment to the Regulations allowed for deductions for telephone services costs, which, incidentally, are not provided for in section 78 of the Act. The Act expressly allows such regulations to be made. So it is against this backdrop that I begin consideration of the legal basis for the applicants’ arguments.
A. Are the Regulations and Commissioner’s Directives consistent with the enabling statute?
[37] As we have just seen, the enabling statute is section 78 of the Act, which has existed in its current form since 1995. Paragraphs 96(z.2) and 96(z.2.1) merely confer upon the Governor in Council the power to make regulations prescribing the purposes for which deductions may be made and providing for the means of collection. I reproduce the provisions in question below:
(z.2) prescribing the purposes for which deductions may be made pursuant to paragraph 78(2)(a) and prescribing the amount or maximum amount of any deduction, which regulations may authorize the Commissioner to fix the amount or maximum amount of any deduction by Commissioner’s Directive;
z.2) précisant l’objet des retenues visées à l’alinéa 78(2)a) et en fixant le plafond ou le montant, ou permettant au commissaire de fixer ces derniers par directive;
(z.2.1) providing for the means of collecting the amount referred to in paragraph 78(2)(b), whether by transferring to Her Majesty moneys held in trust accounts established pursuant to paragraph 96(q) or otherwise, and authorizing the Commissioner to fix, by percentage or otherwise, that amount by Commissioner’s Directive, and respecting the circumstances under which payment of that amount is not required;
z.2.1) prévoyant les modalités de recouvrement de la somme prévue à l’alinéa 78(2)b), notamment le transfert à Sa Majesté de l’argent déposé dans les comptes en fiducie créés conformément à l’alinéa 96q), et permettant au commissaire de prendre des directives pour en fixer le montant — en pourcentage ou autrement — et pour prévoir les circonstances dans lesquelles le versement n’en est pas exigé;
No one disputes the legal source of the Commissioner’s Directives authorized under sections 97 and 98 of the Act:
Rules
Règles d’application
97 Subject to this Part and the regulations, the Commissioner may make rules
97 Sous réserve de la présente partie et de ses règlements, le commissaire peut établir des règles concernant :
(a) for the management of the Service;
a) la gestion du Service;
(b) for the matters described in section 4; and
b) les questions énumérées à l’article 4;
(c) generally for carrying out the purposes and provisions of this Part and the regulations.
c) toute autre mesure d’application de cette partie et des règlements.
Commissioner’s Directives
Nature
98 (1) The Commissioner may designate as Commissioner’s Directives any or all rules made under section 97.
98 (1) Les règles établies en application de l’article 97 peuvent faire l’objet de directives du commissaire.
Accessibility
Publicité
(2) The Commissioner’s Directives shall be accessible to offenders, staff members and the public.
(2) Les directives doivent être accessibles et peuvent être consultées par les délinquants, les agents et le public.
[38] But the applicants submit that the enabling statute that ostensibly allows the Commissioner to authorize payments but also deductions of up to 30% is limited in spite of section 78. They cite the purposes of the Act, specifically in the second part of section 3, to argue that section 78 does not allow deductions because that would be in conflict with the purpose of the correctional system:
Purpose of correctional system
But du système correctionnel
3 The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
3 Le système correctionnel vise à contribuer au maintien d’une société juste, vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d’autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
[EN BLANC/BLANK]
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
[EN BLANC/BLANK]
This objective is also restated more specifically in sections 5 and 76 of the Act. Moreover, the Act requires programs for female offenders (section 77) and for Aboriginal offenders (section 80), in addition to CSC’s duty 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” (section 70).
[39] To succeed, the applicants therefore submit that the statutory objective to facilitate the rehabilitation of offenders and their reintegration into the community prevails. It must prevail in two ways. It must prevail over other objectives. Also, it must prevail over section 78, even though this provision specifically provides for the power exercised by the Governor in Council and the Commissioner.
[40] Subordinate legislation is at odds with its enabling statute if it goes beyond the power conferred. Brown and Evans, in Judicial Review of Administrative Action in Canada (Carswell, loose-leaf), aptly described this issue at section 13:1100:
It is a fundamental principle of public law that all governmental action must be supported by a grant of legal authority. With two minor qualifications, the actions and decisions of public officials and institutions that affect the rights of individuals have no legal force or effect unless authorized by a grant of statutory authority, either express or necessarily implied. Neither individuals nor institutions have inherent powers by virtue of the fact that they perform governmental functions. And although it is not a requirement that the legal source of authority be specified on the face of an administrative order, if challenged, it must be possible to identify the supporting legal authorization.
In this case, the power to act is found in section 78. It is this provision that allows regulatory action. Section 3 confers no power to enact subordinate legislation. It is section 78 that authorizes payments for specific purposes, namely to encourage participation in programs. This includes training, work and correctional or social programs. Moreover, where payment is made, the Act specifically authorizes deductions of up to 30%.
[41] As a result, the exercise of the power conferred by section 78, which strictly adheres to the limits imposed by the statute, cannot go beyond this statute. It is even tautological. The action taken by the administration is, on its face, permitted by the enabling section.
[42] But the applicants submit that the administration should have considered the purpose of the correctional system to find that the insufficient remuneration associated with the deductions imposed is inconsistent with the objectives. In my view, the applicants challenge whether or not the delegated authorities ought to have adopted the Regulations. It amounts to saying that a general provision outlining the purposes of the correctional system must prevail over a specific enactment dealing expressly with the power to make regulations within prescribed limits. This is not an ambiguity to be resolved. Essentially, the applicants submit that Parliament erred in enacting section 78 because the exercise of the power granted is, in their view, inconsistent with the purposes of the correctional system.
[43] It is true that is appears possible, exceptionally, to challenge subordinate legislation on the basis of inconsistency with the objective of the enabling statute. The following passage from the decision of the Supreme Court of British Columbia in Waddell v Governor in Council ((1983), 8 Admin LR 266, at page 292) was cited by the Supreme Court of Canada in Katz Group Canada Inc. v Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 SCR 810 [Katz Group]:
In determining whether impugned subordinate legislation has been enacted in conformity with the terms of the parent statutory provision, it is essential to ascertain the scope of the mandate conferred by Parliament, having regard to the purpose(s) or objects(s) of the enactment as a whole. The test of conformity with the Act is not satisfied merely by showing that the delegate stayed within the literal (and often broad) terminology of the enabling provision when making subordinate legislation. The power-conferring language must be taken to be qualified by the overriding requirement that the subordinate legislation accord with the purposes and objects of the parent enactment read as a whole.
(paragraph 24)
[44] But whoever seeks to invalidate subordinate legislation by arguing improper purpose faces an uphill battle. To begin with, the onus is on them, and the interpretation to be given will support, if possible, intra vires. The task is even harder when the enabling enactment is itself clear. What is more, the ultra vires inquiry “does not involve assessing the policy merits of the regulations to determine whether they are ‘necessary, wise, or effective in practice’” (Katz Group, at para 27). This, in my view, is what is being attempted in this case. Brown and Evans warned that courts “ought not to enter into an assessment of the merits of delegated legislation under the guise of an inquiry about the relevance of factors considered or the propriety of the purpose for which it was enacted” (#15:3261).
[45] There is no doubt that an enactment such as section 3 can be useful in interpreting another section that is otherwise ambiguous. But no authority has been cited, nor do I know of any, that makes it possible to disregard a clear and specific enactment such as section 78 by alleging that the purpose of the Act, set out in section 3, would be better met by ignoring the clear wording of section 78 and proceeding by regulation as permitted.
[46] However, section 78 is far from vague. It was worded by Parliament with exemplary precision. Parliament, which is not presumed to seek to be self-contradictory or inconsistent (Sullivan on the Construction of Statutes, Ruth Sullivan, LexisNexis, 6th ed., 9 11.2-11.6; Interprétation des lois, P.A. Côté et al., Les éditions Thémis, 4th ed., #1150-1165), enacted sections 3 and 78 at the same time in 1992. Parliament expressly provided that deductions of up to 30% could be made. The payments and deductions were set out at the same time as the need to protect the public and facilitate reintegration. In 1995, Parliament specified that deductions of up to 30% could be made from payments authorized to encourage participation in programs and facilitate reintegration and rehabilitation. The overall purpose of the Act, found at section 3 of the Act, that would support the purpose of the correctional system must be understood, to recognize Parliament’s consistency and logic, as permitting not only payments but also deductions of up to 30%. The sections must not be read individually, but together. They are part of a whole. P.A. Côté wrote at para 1163 of his treatise that [translation] “each part of the Act must be considered in light of the whole, meaning that it is necessary to refer to the other provisions of the Act and avoid interpretations that would render them ineffective or pointless.”
[47] What the applicants actually want is for the power conferred by section 78 to be ignored so as to reduce it based on the overall purpose of the correctional system as stated in section 3, thus suggesting that the deduction limit fixed by Parliament is itself too high to facilitate reintegration. For the applicants, the general provision that is section 3 must prevail over the specific provision that is section 78, the exact opposite of the generalia specialibus non derogant principle. In R. v Nabis, [1975] 2 SCR 485, Justice Beetz held that “legal interpretation must tend to integrate various enactments into a coherent system rather than towards their discontinuity” (p. 494). Yet that is what the applicants claim in their argument on vires. Supposedly, there is a conflict between the provision of programs that contribute to offender rehabilitation and reintegration, and payments to encourage participation in these programs and to provide financial assistance to facilitate reintegration. The applicants submit that their choice in terms of public policy must prevail. Such an argument does not follow from the vires of subordinate legislation but rather from the wisdom, necessity and effectiveness of choices of public policy.
[48] One might think that whe