The Federal Court of Appeal overturned a decision which held that a Directive that banned smoking both indoors and outdoors at federal correctional facilities was invalid

Administrative law – Decisions of administrative tribunals – Prison Commissioner – Statutory powers – Prisons – Smoking ban – Judicial review – Compliance with legislation

Mercier v. Canada (Correctional Service), [2010] F.C.J. No. 816, 2010 FCA 167, Federal Court of Appeal, June 21, 2010, Nadon, Pelletier and Trudel JJ.A.

This was an appeal of a judgment which allowed a judicial review application challenging the legality of the Commissioner of the Correctional Service of Canada’s (“the Commissioner”) Directive No. 259, banning smoking indoors and outdoors at federal correctional facilities. Upon judicial review, a federal court justice declared the Directive to be invalid. The Federal Court of Appeal was asked to reconsider whether the Commissioner had the legislative authority to enact a total ban on smoking in correctional facilities and, if the answer to that question was affirmative, whether Directive No. 259 fell within the scope of the powers given to the Commissioner.

The Federal Court of Appeal assessed the relevant legislation, including section 70 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“ the Act”) which provides that the Correctional Service of Canada shall take all reasonable steps to ensure that penitentiaries, the living and working conditions of all inmates, the working conditions of all staff members are safe, healthful and free of practices that undermine a person’s sense of dignity. Sections 96 and 97 of the Act further provide that the Governor in Council may make regulations and the Commissioner may make rules providing for matters referred to in s. 70.

The Federal Court of Appeal dismissed an argument that would have limited the Commissioner’s ability to issue Directives due to the wording of sections 96 and 97. The Court held that Parliament intended significant overlap between the Commissioner’s power to issue Directives and the Governor in Council’s authority to enact regulations. Such overlap is highly desirable in administrative schemes because instruments such as Directives, rules and guidelines are typically more flexible and easier to institute, revoke or change as the circumstances require.

Turning to whether Directive No. 259 fell within the scope of the powers given to the Commissioner, the Court emphasized that there was no dispute before it with regard to the danger that indoor smoking may pose to non-smokers and that in enacting the Directive the Commissioner was attempting to prevent both inmates and employees from smoking indoors within federal correctional facilities so as to protect non-smokers. The Court concluded that the Directive fell within the scope of the powers given to enable the Commissioner to take steps to ensure that the living and working conditions of inmates and employees are safe and healthful. The Court held that the Judge of the Federal Court erred in declaring the Directive invalid.

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