JEAN GUÉRIN JARROD SHOOK JAMES DRUCE JOHN ALKERTON MICHAEL FLANNIGAN CHRISTOPHER ROCHELEAU JOHANNE BARITEAU GAÉTAN ST-GERMAIN JEFF EWERT Applicants v. THE ATTORNEY GENERAL OF CANADA, 2018 FC 94

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 : " "

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: i. 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. ii. 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: i. 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. ii. 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 96 z .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 (96 z .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 (96 z .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 asCommissioner’s Directives any or all rulesmade under

section 97. " "98 (1)"" Les règles établies en applicationde l’article 97 peuvent faire l’objet dedirectives du commissaire. ""Accessibility " "Publicité ""

(2) The Commissioner’s Directives shall beaccessible to offenders, staff members and thepublic. " "(2)"" Les directives doivent être accessibleset 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 alsodeductions 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, toargue 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 correctionalsystem is to contribute to the maintenance ofa just, peaceful and safe society by " "3"" Le système correctionnel vise àcontribuer au maintien d’une société juste,vivant en paix et en sécurité, d’une part, enassurant l’exécution des peines par desmesures de garde et de surveillancesécuritaires et humaines, et d’autre part, enaidant au moyen de programmes appropriésdans les pénitenciers ou dans la collectivité, àla réadaptation des délinquants et à leurréinsertion sociale à

titre de citoyensrespectueux des lois. ""(

a) carrying out sentences imposed by courtsthrough the safe and humane custody andsupervision of offenders; and " "[EN BLANC/BLANK] " "(

b) assisting the rehabilitation of offendersand their reintegration into the community aslaw-abiding citizens through the provision ofprograms in penitentiaries and in thecommunity. " "[EN BLANC/BLANK] " This objective is also restated more specifically in sections 5 and 76 of the Act.

Moreover, the Act requires programs for femaleoffenders (section 77) and for Aboriginal offenders (section 80), in addition to CSC’s duty to "“ensure that penitentiaries, the penitentiaryenvironment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free ofpractices 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 theirreintegration into the community prevails. It must prevail in two ways.

It must prevail over other objectives. Also, it must prevail oversection 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 JudicialReview 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. Withtwo minor qualifications, the actions and decisions of public officials and institutions that affect the rights of individualshave no legal force or effect unless authorized by a grant of statutory authority, either express or necessarily implied. Neitherindividuals nor institutions have inherent powers by virtue of the fact that they perform governmental functions.

Andalthough it is not a requirement that the legal source of authority be specified on the face of an administrative order, ifchallenged, 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 enactsubordinate 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 authorizesdeductions 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 gobeyond 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 theinsufficient remuneration associated with the deductions imposed is inconsistent with the objectives. In my view, the applicantschallenge whether or not the delegated authorities ought to have adopted the Regulations.

It amounts to saying that a general provisionoutlining the purposes of the correctional system must prevail over a specific enactment dealing expressly with the power to makeregulations within prescribed limits. This is not an ambiguity to be resolved. Essentially, the applicants submit that Parliament erred inenacting

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 objectiveof the enabling statute.

The following passage from the decision of the Supreme Court of British Columbia in Waddell v Governor inCouncil ((1983), (BC SC), 8 Admin LR 266, at page 292) was cited by the Supreme Court of Canada in Katz GroupCanada 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 thepurpose(

s) or objects(

s) of the enactment as a whole. The test of conformity with the Act is not satisfied merely by showingthat the delegate stayed within the literal (and often broad) terminology of the enabling provision when making subordinatelegislation. The power-conferring language must be taken to be qualified by the overriding requirement that the subordinatelegislation 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 onusis on them, and the

interpretation to be given will support, if possible, intra vires. The task is even harder when the enabling enactment isitself clear. What is more, the ultra vires inquiry "“does not involve assessing the policy merits of the regulations to determine whetherthey 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 aninquiry 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. Butno 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 byalleging that the purpose of the Act, set out in

section 3, would be better met by ignoring the clear wording of

section 78 and proceedingby regulation as permitted. [46] However,

section 78 is far from vague. It was worded by Parliament with exemplary precision. Parliament, which is not presumedto 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 timeas the need to protect the public and facilitate reintegration.

In 1995, Parliament specified that deductions of up to 30% could be madefrom payments authorized to encourage participation in programs and facilitate reintegration and rehabilitation. The overall purpose ofthe Act, found at

section 3 of the Act, that would support the purpose of the correctional system must be understood, to recognizeParliament’s consistency and logic, as permitting not only payments but also deductions of up to 30%. The sections must not be readindividually, but together. They are part of a whole. P.A. Côté wrote at para 1163 of his treatise that [translation] "“each part of the Actmust be considered in light of the whole, meaning that it is necessary to refer to the other provisions of the Act and avoid

interpretationsthat 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 overallpurpose of the correctional system as stated in

section 3, thus suggesting that the deduction limit fixed by Parliament is itself too high tofacilitate reintegration. For the applicants, the general provision that is

section 3 must prevail over the specific provision that issection 78, the exact opposite of the generalia specialibus non derogant principle. In R. v Nabis, (SCC), [1975] 2 SCR485, Justice Beetz held that "“legal

interpretation must tend to integrate various enactments into a coherent system rather than towardstheir discontinuity”" (p. 494). Yet that is what the applicants claim in their argument on vires. Supposedly, there is a conflict between theprovision of programs that contribute to offender rehabilitation and reintegration, and payments to encourage participation in theseprograms and to provide financial assistance to facilitate reintegration. The applicants submit that their choice in terms of public policymust prevail.

Such an argument does not follow from the vires of subordinate legislation but rather from the wisdom, necessity andeffectiveness of choices of public policy. [48] One might think that where the enabling enactment is vague, it would be easier to cite the purpose of the statute to show thatParliament did not intend for such use of the power conferred. That is not the case here, quite the opposite. [49] In my view, there is no actual or potential conflict between the power conferred by

section 78 and the objectives of the correctionalsystem. Rather, there is a difference as to the ways to promote public policy. In fact, the regime put in place is not rigid. An inmate caneven be exempted, as the Regulations provide for significant flexibility in subsection 104.1(7): "

(7) Where the institutional head determines,on the basis of information that is supplied byan offender, that a deduction or payment of anamount that is referred to in this

section willunduly interfere with the ability of theoffender to meet the objectives of theoffender’s correctional plan or to meet basicneeds or family or parental responsibilities,the institutional head shall reduce or waivethe deduction or payment to allow theoffender to meet those objectives, needs orresponsibilities.

" "(7)"" Lorsque le directeur du pénitencierdétermine, selon les renseignements fournispar le délinquant, que des retenues ou desversements prévus dans le présent articleréduiront excessivement la capacité dudélinquant d’atteindre les objectifs de sonplan correctionnel, de répondre à des besoinsessentiels ou de faire face à desresponsabilités familiales ou parentales, ilréduit les retenues ou les remboursements ouy renonce pour permettre au délinquantd’atteindre ces objectifs, de répondre à cesbesoins ou de faire face à ces responsabilités." [50] The applicants provided no authority in support of their submission.

In my view, this issue was completely disposed of in KatzGroup, at paragraph 28: [28] It is not an inquiry into the underlying “political, economic, social or partisan considerations” (Thorne’s Hardware Ltd.v. The Queen, (SCC), [1983] 1 S.C.R. 106, at pp. 112-13). Nor does the vires of regulations hinge onwhether, in the court’s view, they will actually succeed at achieving the statutory objectives (CKOY Ltd. v. The Queen, (SCC), [1979] 1 S.C.R. 2, at p. 12; see also Jafari, at p. 602; Keyes, at p. 266).

They must be “irrelevant”,“extraneous” or “completely unrelated” to the statutory purpose to be found to be ultra vires on the basis of inconsistency

with statutory purpose (Alaska Trainship Corp. v. Pacific Pilotage Authority, (SCC), [1981] 1 S.C.R. 261;Re Doctors Hospital and Minister of Health (1976), (ON SC), 12 O.R. (2d) 164 (Div. Ct.); Shell CanadaProducts Ltd. v. Vancouver (City), (SCC), [1994] 1 S.C.R. 231, at p. 280; Jafari, at p. 604; Brown andEvans, at 15:3261). In effect, although it is possible to strike down regulations as ultra vires on this basis, as Dickson J.observed, “it would take an egregious case to warrant such action” (Thorne’s Hardware, at p. 111). [Emphasis added] [51] As I have attempted to demonstrate,

section 78 of the Act and the statutory objective set out in

section 3 are not inconsistent. Theapplicants’ view that there should be no deductions or that payments to inmates should be generally increased warrants respect in termsof public policy. This view requires, however, the Court to make a determination on the issue of whether the Regulations will succeed atachieving the objectives of the Act in spite of the clear authority to do so provided for by the Act. The applicants’ argument strikes me asbeing much more about the wisdom of enacting legislation allowing deductions of up to 30% than the vires of subordinate legislation.

Itis obviously easy to see that subordinate legislation does not, in any way, go beyond the words of the directly enabling section. Althoughthe wording of the statute dealing with the purpose of the correctional system must also be considered, there is nothing in the subordinatelegislation to suggest a case of ultra vires. The Regulations and the Commissioner’s Directives are not irrelevant, extraneous orcompletely unrelated to the purpose of the Act.

This is rather an attempt on the part of the applicants to get the Court to consider theappropriateness of the subordinate legislation, which is to be avoided. [52] The evidence adduced by the applicants is unequivocal: they are affected by deductions from payments and the end of incentivepay. But that is not the issue when dealing with subordinate legislation inconsistent with the enabling statute, with ultra vires. Theburden of proving that the subordinate legislation is ultra vires, unauthorized by

section 78, has not been discharged. Regardless of thewisdom of this subordinate legislation, it is intra vires, directly permitted by

section 78. B. Are the Regulations and Commissioner’s Directives contrary to sections 12 and 7of the Canadian Charter of Rights and Freedoms? [53] Like the administrative law issues relating to the vires of subordinate legislation, constitutional questions are not a matter ofimpression, or policy choices, either. [54] The applicants complied, as recognised in Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 [Guindon], with

section 57 of theFederal Courts Act, which provides that notice must be given to attorneys general when the constitutionality of regulations is in questionbefore the Federal Court. As required by Form 69, the notice must contain the material facts giving rise to the constitutional question andthe legal basis for the constitutional question. This makes it possible to establish the specific framework for the debate before this Court.There is no doubt as to the importance of the constitutional notice.

As judges Abella and Wagner stated in Guindon, the notice allows forthe fullest and best evidence possible (para 92) based on the framework set out by the notice. It is impossible to respond properly andeffectively to a constitutional notice if it is imprecise or inconsistent. In fact, the Federal Court of Appeal struck out a notice that was notsufficiently clear or detailed in Doug Kimoto v Canada (Attorney General), 2011 FCA 291, 426 NR 69.

It must therefore be admittedthat the limits created by the notice of constitutional question are rigid. [55] It seems to me that the notice of constitutional question given in this case covers more than what

section 57 requires. It alleges thatthe subordinate legislation is ultra vires and inconsistent with two sections of the Criminal Code and with certain internationalinstruments. These are not the questions referred to in

section 57, which is about addressing the "“constitutional”" validity, applicabilityor operability that is challenged. [56] Regarding the constitutional questions, they involve sections 12 and 7 of the Charter: a)Section 12: The Regulations and Commissioner’s Directives are described as treatment that outrages standards of decency. b)Section 7: In my view, the notice is less clear when it refers to

section 7. While

section 7 protects the right to life, liberty andsecurity of the person, the notice simply argues an infringement of the [translation] "“rights protected by

section 7”": i)[translation] "“particularly because their effects on the children’s right are disproportionate”"; ii)[translation] "“particularly because they have unfair effects”"; and iii)[translation] "“particularly because of their effects on the inmates’ right to security”". The Attorney General did not complain that Form 69 requires setting out the legal basis for each constitutional question and stating thenature of the constitutional principles. Indeed, the notice does not specify the particular right invoked (apart from maybe the reference tothe inmates’ security for one of the allegations).

But more importantly, it gives no indication of the impugned principles of fundamentaljustice.

Section 7 "“protects the right not to be deprived of one’s life, liberty and security of the person when that is done in breach of theprinciples of fundamental justice”" (Re B.C. Motor Vehicle Act, (SCC), [1985] 2 SCR 486, page 500 [Re Motor VehicleAct]). The three interests are distinct, and the principles of fundamental justice are not a protected interest, "“but rather a qualifier of theright not to be deprived of life, liberty and security of the person”" (page 501).

The complainant has the onus of establishing not only aninfringement of the protected interest, but also how it constitutes a violation of a principle of fundamental justice. The notice says littleabout the protected interest and nothing about the principle of fundamental justice. As will be seen, these shortcomings ought to havebeen noted as well when the applicants presented before the Court their more complete argument. [57] Constitutional notices must also set out the material facts.

Since the facts are important, it would be appropriate at this juncture tocomment on those relied upon. [58] Though it is true that, as alleged, the Act requires CSC to "“provide a range of programs designed to address the needs of offenders

and contribute to their successful reintegration into the community”" (section 76 of the Act), it is incorrect to argue that [translation]"“the Correctional Service of Canada must provide inmates with a fair pay system”" (constitutional notice, material fact #2). Thisstatement disregards the very wording of the Act that gives the Commissioner the authority to pay inmates and that is not subject toconstitutional challenge.

Section 78, which is not challenged, does not create a duty, but rather an option. First, subsection 78(1) uses theword "“may”" and not "“shall”" as in

section 76, which obviously demonstrates how the provisions are different. Second,subsection 78(2) starts with the words "“[w]here an offender receives a payment referred to in subsection (1)”", which suggests thatpayments may not be made. The

Interpretation Act, R.S.C., 1985, c. I-21, states that "“[t]he expression ‘shall’ is to be construed asimperative and the expression ‘may’ as permissive”" (section 11). [59] In addition, the rates are fixed by the Treasury Board, the only cabinet committee created by statute under the FinancialAdministration Act (R.S.C., 1985, c. F-11;

section 5), not CSC. The applicants’ claim that, under the Act and its Regulations, CSC[translation] "“must provide inmates with a fair pay system”" is incorrect. A cabinet committee is not a department. CSC and itsCommissioner comply with the Treasury Board’s decision. Moreover, payments to inmates under

section 78 are authorized for thepurpose of "“encouraging offenders to participate in programs provided by the Service”" or "“providing financial assistance to offendersto facilitate their reintegration into the community.”" This is not fair payment for work performed. An inmate studying as part of a CSCprogram may receive the same daily rate as any inmate who is employed. Similarly, the system under

section 78 is completely differentfrom the one in place in the early 1980s, as seen earlier. Under that system, inmates were paid based on their job, with each job having tobe listed and described, and with pay rates assigned to each job. That is not what the Act has provided since its enactment in 1992.Payments may be made to encourage participation in programs or to provide financial assistance to facilitate reintegration.

Therefore, thereference to the 1981 system presented by the applicants as a material fact is not as material from the constitutional standpoint as theywould have us believe. [60] Lastly, there is no doubt as to the harshness of deductions of 30%, which affect inmates’ ability to set funds aside to facilitate theirreintegration. I propose to address each constitutional argument in turn.

(1) Section 12 of the Charter [61]

Section 12 of the Charter protects against cruel and unusual treatment: "12. Everyone has the right not to besubjected to any cruel and unusual treatmentor punishment. " "12."" Chacun a droit à la protection contretous traitements ou peines cruels et inusités. " [62] Therefore, it is important to properly define the issue. The applicants are obviously complaining of insufficient payments. But ifpayments cut by 30% are not unconstitutional, it is quite clear that the upward adjustments that were not made would not beunconstitutional either.

The applicants submit that the payments they receive, including the deductions of 30% now in place, constitutecruel and unusual treatment. It is argued that adjustments should be made to the wages paid in 1981 to satisfy

section 12 of the Charter.The indexation that did not take place, if I understand correctly, is also a violation of

section 12. [63] To the applicants, the possibility of being deprived of the opportunity to make frequent telephone calls and having private familyvisits curtailed because the costs are covered by inmates (or their families) whose payment has been reduced constitutes cruel andunusual treatment. According to the applicants, paying a pittance for work constitutes [translation] "“grossly disproportionate hardship,so excessive as to outrage standards of decency”" (memorandum of fact and law, para 58). [64] In making this claim, the applicants are ignoring the wording of

section 78 of the Act. Payment is not compensation for workperformed, but rather to encourage participation in programs, including work in the penitentiary or at CORCAN. Participating inprograms, including work-based programs, benefits the inmate, who can develop useful skills to help with reintegration into thecommunity, or simply obtain parole by progressing through the Correctional Plan. In other words, the applicants’ argument seems to bebased on a very different paradigm from the one presented in the Act, which is not being contested.

The applicants have good reason towant to avail themselves of the 1981 compensation plan. It would be more favourable to them. However, the Parliament of 1992preferred a different paradigm, and that is the one that must be considered here. The paradigm from 1992–1995 is not the subject of aconstitutional challenge. The only issue is to determine if the decrease in payment, not its abolition, can constitute cruel and unusualtreatment within the meaning of

section 12 of the Charter, even though the Treasury Board was not granted the discretion to set rates.The applicants say that discretion should not have been granted to reduce payment to the maximum provided by the Act. [65] The Supreme Court of Canada recently pointed out that

section 12 sets a high standard (R. v Nur, 2015 SCC 15, [2015] 1 SCR 773;in this case, it was a matter of cruel and unusual punishment). It seems that the criterion to be applied is still that identified by theSupreme Court in R. v Smith (Edward Dewey), (SCC), [1987] 1 SCR 1045 [Smith]. Page 1072 reads: The limitation at issue here is s. 12 of the Charter. In my view, the protection afforded by s. 12 governs the quality of thepunishment and is concerned with the effect that the punishment may have on the person on whom it is imposed.

I wouldagree with Laskin C.J. in Miller and Cockriell, supra, where he defined the phrase “cruel and unusual” as a "compendiousexpression of a norm"." The criterion which must be applied in order to determine whether a punishment is cruel andunusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p.688, “whether the punishment prescribed is so excessive as to outrage standards of decency”.

In other words, although theState can impose a punishment, its effect must not be grossly disproportionate to that which would be appropriate."" " "[Emphasis added]"" " [66] In fact, in his reasons, Mr. Justice Lamer insisted that excessive or disproportionate punishment is not inherently unconstitutional(page 1072). It must involve a degree of severity that leads to this excess before it can be found that the treatment imposed is an outrageto standards of decency.

[67] Our Court applied this high standard in cases involving allegations of cruel and unusual treatment in penitentiaries((Brazeau v Canada (Attorney General), 2015 FC 151; Tyrrell v Canada (Attorney General), 2008 FC 42; see also R. v Olson (1987), (ON CA), 62 O.R. (2d) 321 (ONCA) where the Court specifically applied the standard of outrage to standards ofdecency to cruel and unusual treatment). [68] It is difficult to see how treatment provided for by

an Act that is not the subject of a constitutional challenge could beunconstitutional based on the sole fact that the Commissioner exercised the power granted to reduce payment, to the level allowed byParliament. Nonetheless, independent of this possible issue, the applicants would still have to explain how the decrease in payment couldconstitute treatment so excessive as to outrage standards of decency. The degree of severity must meet the standard. In Smith, Lamer J.gives examples of treatments that are still grossly disproportionate and outrage standards of decency: lashing, lobotomy and castration(page 1074).

In Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, 2002 SCC 1 [Suresh], the Court applied thestandard of outrage to standards of decency and stated that the punishment "“must be so inherently repugnant that it could never be anappropriate punishment, however egregious the offence.”" (para 51). Torture falls into this category. Can we realistically claim thatdecreasing payment to encourage participation in programs, including work in the institution, and to provide financial assistance is equalin severity to the cases to which

section 12 of the Charter applies? I think not. [69] There is no reason to think that jurisprudence under

section 12 created rigid categories. Moreover, it must be concluded that theSmith test cannot be met unless the treatment involves a significant degree of severity. After all, even a disproportionate or excessivepunishment does not satisfy the criteria for intervention under

section 12. [70] The applicants focused on the system in place in 1981, which was clearly based on a completely different philosophy than the oneimplemented in 1992. The current Act states that payment is not intended to provide compensation for work performed, but to encourageparticipation in programs or provide financial assistance to offenders to help with their reintegration into the community. [71] It was shown that payment varied in other democratic countries and different Canadian provinces.

For example, it was shown thatinmates in American federal institutions may or may not (as is the case in Texas) be paid. California inmates are apparently paid anhourly rate of $0.11 to $0.37, and must not exceed $12 and $56 per month. In Great Britain, the minimum payment is set at £4 per week.In New Zealand, "“incentive payments”" are set at between $0 and $1 per hour. [72] However, there would first have to be a constitutional requirement to provide payment before even attempting to determine theappropriate amount to avoid contravening

section 12 of the Charter, involving cruel and unusual treatment so excessive as to outragestandards of decency. This was far from being demonstrated. In fact, it is unclear which "“treatment”" is being referred to. The issue hereis payments considered to be insufficient. [73] It is more a matter of showing a contravention of

section 12 than of the applicants having to ask the Court to call into questionParliament’s choices which allowed the Treasury Board to set the rates. How

section 12 creates a positive obligation was neverproposed, much less demonstrated, to allow discussion of a treatment that satisfied the terms of

section 12. [74] There is substantial and persuasive evidence that inmates’ basic needs are adequately met. For specific cases, it is possible to applyto this Court (Fabrikant v Canada, 2013 FCA 212; use of a parka). The issue here is the frustration at not receiving higher payments forpersonal use, whether it be to use in the canteen, clothing, some hygiene products or for family visits, the cost of which is covered byinmates (or their families). I am far from convinced that this constitutes a treatment without first agreeing that there is a constitutionalobligation to pay inmates.

I am in no way discussing the merits of paying inmates to encourage their participation in programs and tofacilitate their community reintegration, or the amounts to be paid. The only issue is to show that a treatment is involved and that thistreatment is cruel and unusual because the amounts paid are not enough to cover purchases beyond what is already provided by theinstitution. Which "“treatment”" exactly is being referred to? Not being paid enough to encourage participation in programs that wouldhelp with rehabilitation?

Not only might one suspect that this does not constitute a treatment suffered, it was also not shown to be soexcessive in nature as to outrage standards of decency, as would be the case for lashing, castration, lobotomy or the minimum sentencefor certain offences.

The more or less severe frustrations caused by payments that were not as generous as expected simply do not standin the same category in the eyes of the law. [75] In my opinion, the applicants are seeking to ask this Court to rule on the wisdom of the Commissioner’s decision to use discretiongranted by the Act, and on the Treasury Board’s decision to set the payment rate, the constitutionality of which has not been challengedin this case. It is an invitation that this Court must decline.

What is woefully missing here is proof that the payment made is soinadequate as to impose a positive obligation on the government because the treatment outrages standards of decency, similar to torture,lashing, lobotomy, castration and minimum punishments for minor offences. The burden on the applicants to show the Court that thetreatment, if it is such, is so severe as to outrage standards of decency has not been discharged. No authority was even presented toattempt to make an argument, even using a tenuous analogy.

(2) Section 7 of the Charter [76] The applicants also tried to invoke

section 7 of the Charter, but their attempt ran into a major roadblock. In addition to thesomewhat imprecise nature of the argument concerning the interest invoked, it is more the inability to identify principles of fundamentaljustice that has proved fatal. Once again, the burden was not discharged. The applicants have the burden of persuasion regarding theliberty or security interest and the principles of fundamental justice that were apparently violated.

As already noted, the Supreme Courtin Re Motor Vehicle Act found that "“(t)he principles of fundamental justice, on the other hand, are not a protected interest, but rather aqualifier of the right not to be deprived of life, liberty and security of the person”" (p.501). A challenge under

section 7 must address theprinciples of fundamental justice to be successful. [77] In their memorandum of fact and law, and at the hearing for this case, the applicants specified that the interests targeted in this fileare the right to liberty and the right to security of the person. In my opinion, the real issue was not the effect of an unspecified violationon the rights of children, which was raised in the notice of constitutional question. In any case, no argument was offered in this regardand the applicants’ children are not party to the proceeding.

a) Right to liberty [78] It was not easy to establish how the simple fact of having payments that the applicants consider not sufficiently generous, or howreducing the payment that the Commissioner pays inmates, to encourage them to participate in programs or to provide them withfinancial assistance to help with their social reintegration constitutes an infringement of freedom. I will say it again. The constitutionalityof

section 78 which only grants discretionary power to make payments for these purposes is not at issue. Nor is the Treasury Board’sdecision on the payment rates at issue. The applicants are also not claiming a constitutional right to payment while in custody.

Instead,they are saying that reducing payment used for lodging and food expenses and to defray the cost of operating their telephone systeminfringes on their freedom. [79] Inmates’ "“residual liberty”" is not the issue. (Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502, at para 34) [Khela].Khela and May v Ferndale Institution, [2005] 3 SCR 809, 2005 SCC 82, also cited by the applicants, are cases involving access tohabeas corpus in the provincial superior court for an inmate whose residual liberty in the penitentiary has been reduced.

Both casesinvolved transfers to high-security facilities (Khela indicates that other examples include administrative segregation and incarceration ina special handling unit). [80] If I understand the applicants’ argument correctly, their refusal to work because their payment was reduced could lead to furtherrestriction of their freedom of movement in the institution. One of the applicants refused to continue working, claiming that he had verylittle motivation to work because he felt exploited.

However, this inmate was warned that, during "“work hours”", inmates who do notparticipate in regular activities must remain in their cell. The affiant mentioned being in solitary confinement. However, the evidenceshows that this is not "“administrative segregation”", as described in

section 31 of the Act, as may have been suggested, but rather theapplication of a standing order in Drummond Institution, dealing with the movement of inmates in the institution (affidavit from MylèneDuchemin, program manager at Drummond Institution). Inmates participating in regular activities are allowed to move around, but thosenot participating must remain in their cells during activity times. Movements can resume outside of activity times.

It should also be notedthat inmates who had decided to stop working chose to avoid having to remain in their cells for a period of time by simply acceptinganother job. [81] I have serious doubts about the liberty interest allegedly infringed upon in this case. I would have thought that restriction ofmovement in a penitentiary is the norm. It would seem rather strange that someone participating in activities as part of a CorrectionalPlan could not go to the training or work location.

However, when inmates who are not participating in any such activity are required toremain in their cells during this period, it is difficult to see this as a significant infringement of liberty. The applicants seemed to want toconsider only residual liberty in claiming an infringement of the liberty interest protected under

section 7. If inmates are incarcerated in aprison within the prison, their residual liberty is affected. If they are transferred to a higher-security institution, their residual liberty isaffected. However, the evidence in this case was very tenuous. Physical restraint is inherent in imprisonment. Are inmates who arerequired to remain in their cells when not participating in activities during regular hours being deprived of their residual liberty,considering that they are not confined in this way during other periods? [82] However, the definition of "“liberty”" was interpreted rather broadly.

In Blencoe v British Columbia (Human Rights Commission),2000 SCC 44, [2000] 2 SCR 307 [Blencoe], one reads: 49. The liberty interest protected by s. 7 of the Charter is no longer restricted to mere freedom from physical restraint.Members of this Court have found that “liberty” is engaged where state compulsions or prohibitions affect important andfundamental life choices. This applies for example where persons are compelled to appear at a particular time and place forfingerprinting (Beare, supra); to produce documents or testify (Thomson Newspapers Ltd. v.

Canada (Director ofInvestigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425); andnot to loiter in particular areas (R. v. Heywood, (SCC), [1994] 3 S.C.R. 761). In our free and democraticsociety, individuals are entitled to make decisions of fundamental importance free from state interference. In B.(R.) v.

Children’s Aid Society of Metropolitan Toronto, (SCC), [1995] 1 S.C.R. 315 at para. 80, La ForestJ., with whom L’Heureux-Dubé, Gonthier and McLachlin JJ. agreed, emphasized that the liberty interest protected by s. 7must be interpreted broadly and in accordance with the principles and values underlying the Charter as a whole and that itprotects an individual’s personal autonomy: . . . liberty does not mean mere freedom from physical restraint.

In a free and democratic society, the individualmust be left room for personal autonomy to live his or her own life and to make decisions that are offundamental personal importance. [Emphasis added] [83] Imprisonment constitutes per se a restriction of the freedom of movement. But this is not the issue. Instead, the applicants areclaiming that the normal situation for inmates has become an unconstitutional infringement of the right to liberty when they are notallowed to circulate freely in the institution while other inmates are occupied with their training or work activities.

Under thecircumstances, it is not necessary or wise, given the quality of the evidence, to reach a conclusion because the applicants havecompletely failed to present any argument to satisfy their total burden, including demonstrating the violation of principles of fundamentaljustice. It is preferable to deal with the matter based on the principles of fundamental justice that this practice would involve.

b) Right to security of the person [84] The applicants claim that their psychological integrity was harmed, which would constitute a violation of the security of the person.They claim that the reduced payment prevents them from maintaining their personal hygiene, remaining in frequent contact with theirfamily, contributing to their children’s basic needs, and even satisfying their hunger. [85] However, as indicated above, examination of the evidence leads to the conclusion that all basic needs, from food to hygieneproducts, are met during incarceration. However, individual preferences are not accommodated and the applicants allege that the

payments made do not allow them to make certain choices that they consider important. The math is simple. A 30% reduction of analready modest payment leaves even less money available for small purchases or savings. This inevitably creates discontent. This is theimpression that stands out on examination of the evidence. However, we are a long way from the constitutional standard that requiresserious psychological stress. Blencoe reads: 56 The principle that the right to security of the person encompasses serious state-imposed psychological stress has recentlybeen reiterated by this Court in G. (J.), supra.

At issue in G. (J.) was whether relieving a parent of the custody of his or herchildren restricts a parent’s right to security of the person. Lamer C.J. held that the parental interest in raising one’s childrenis one of fundamental personal importance. State removal of a child from parental custody thus constitutes direct stateinterference with the psychological integrity of the parent, amounting to a “gross intrusion” into the private and intimatesphere of the parent-child relationship (at para. 61).

Lamer C.J. concluded that s. 7 guarantees every parent the right to a fairhearing where the state seeks to obtain custody of their children (at para. 55). However, the former Chief Justice also setboundaries in G. (J.) for cases where one’s psychological integrity is infringed upon. He referred to the attempt to delineatesuch boundaries as “an inexact science” (para. 59). 57 Not all state interference with an individual’s psychological integrity will engage s. 7.

Where the psychological integrityof a person is at issue, security of the person is restricted to “serious state-imposed psychological stress” (Dickson C.J. inMorgentaler, supra, at p. 56). I think Lamer C.J. was correct in his assertion that Dickson C.J. was seeking to conveysomething qualitative about the type of state interference that would rise to the level of infringing s. 7 (G. (J.), at para. 59).The words “serious state-imposed psychological stress” delineate two requirements that must be met in order for security ofthe person to be triggered.

First, the psychological harm must be state imposed, meaning that the harm must result from theactions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused bygovernment will lead to automatic s. 7 violations. These two requirements will be examined in turn. [86] The serious psychological suffering at issue in New Brunswick (Minister of Health and Community Services) v G. (J.), (SCC), [1999] 3 SCR 46 [G. (J.)] is not at all comparable to that in our case. G. (J.) refers to "“a serious and profound effect on aperson’s psychological integrity.

The effects of the state interference must be assessed objectively, with a view to their impact on thepsychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, butmust be greater than ordinary stress or anxiety”" (para 60). The issue here is the reduction of payments made to encourage participationin programs intended to help with an inmate’s reintegration.

The evidence on file does not at all support a serious and profound effect ona person’s psychological integrity caused by state interference. [87] Compare it to the decision in Gosselin v Québec (Attorney General), 2002 SCC 84, [2002] 4 SCR. 429 [Gosselin]. This casedirectly addresses security of the person. Quebec had decided to modify the social assistance scheme to encourage reintegration into theactive population. To do so, the allowance payable to persons under 30 was reduced unless they were participating in an educationprogram or a designated work activity. [88] Ms.

Gosselin invoked the security of the person, among other things, claiming to have the right under

section 7 to receive "“aparticular level of social assistance from the state adequate to meet basic needs”" (para 75). The Supreme Court refused to read in section7 the possibility of a basis for a positive state obligation to guarantee adequate living standards. At this stage of the development of thelaw, economic rights were not included in

section 7: [81] Even if

section 7 could be read to encompass economic rights, a further hurdle emerges.

Section 7 speaks of the rightnot to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice.Nothing in the jurisprudence thus far suggests that

section 7 places a positive obligation on the state to ensure that eachperson enjoys life, liberty or security of the person. Rather,

section 7 has been interpreted as restricting the state’s ability todeprive people of these. Such a deprivation does not exist in the case at bar. [Emphasis added] The door has not been completely closed. Thus, "“the possibility that a positive obligation to sustain life, liberty, or security of the personmay be made out in special circumstances”" could be left open. The Court ruled, "“(h)owever, this is not such a case”" (subsection 83),and ours is certainly not such a case. [89] The right to security of the person, within the meaning of

section 7, requires serious state-imposed psychological stress. It isdifficult to understand how a reduction in the remuneration paid could be elevated to this level. At any rate, the evidence adduced neverreached that level. If the plaintiffs wish to claim that the state must guarantee them certain benefits, even when they are incarcerated,they are colliding head on with Gosselin. However, as for infringing the right to freedom, the total absence of arguments concerninginfringement of the principles of fundamental justice is fatal.

(3) Principles of fundamental justice [90] In a rather surprising fashion, the plaintiffs did not present in their memorandum of fact and law any argument related to theprinciples of fundamental justice, although they are at the heart of

section 7 of the Charter. In Carter v Canada (Attorney General), 2015SCC 5, [2015] 1 SCR 331, the Supreme Court of Canada held that "“section 7 does not promise that the state will never interfere with aperson’s life, liberty or security of the person – laws do this all the time – but rather that the state will not do so in a way that violates theprinciples of fundamental justice”" (para 71). In Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, [2014] 3 SCR 176 [Kazemi],the Court made the point, emphasizing that "“to conclude to a breach of

section 7 of the Charter, it must be demonstrated that a principleof fundamental justice has been violated due to the application of subsection 3(1) of the SIA to the claims at issue”" (para 135). Also, theAttorney General indicated that the action should be dismissed on this basis alone. She was right. [91] The Federal Court of Appeal aptly summarized the meaning given to the notion in an authoritative case. Erasmo v Canada(Attorney General), 2015 FCA 129 [Erasmo] (leave to appeal refused) states:

[44] At a more general level, the appellant alleges that the merger provisions are substantively unfair. But that alone doesnot establish a violation of the principles of fundamental justice. [45] The principles of fundamental justice are not collections of principles of unfairness or “vague generalizations aboutwhat our society considers to be ethical or moral”: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571 atparagraphs 112 (per Gonthier and Binnie JJ., for the majority) and 224 (per Arbour J., dissenting). They do not lie in therealm of general public policy: Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486 at page 503, 24D.L.R. (4th) 536. Nor are they “empty vessel[s] to be filled with whatever meaning we might wish from time to time”:Reference Re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313 at page 394, 38D.L.R. (4th) 161 (per McIntyre J.). [46] Instead, the principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. MotorVehicle Act, above at page 503, cited with approval in Mooring v.

Canada (National Parole Board), (SCC), [1996] 1 S.C.R. 75, 132 D.L.R. (4th) 56 at paragraph 39; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1S.C.R. 44 at paragraph 23; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, 17 C.R. (7th)87 at paragraph 89; and many others. They are “principles upon which there is some consensus that they are vital orfundamental to our societal notion of justice”: R. v. D.B., above at paragraphs 46, 61, 67-68, 125, 131 and 138; R. v. Malmo-Levine; R. v. Caine, above at paragraphs 112-13; Kazemi Estate v.

Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R.176 at paragraph 139). They are “the shared assumptions upon which our system of justice is grounded” that “find theirmeaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens”:Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 atparagraph 8. [47] The principles of fundamental justice can invalidate any legislation or actions taken under legislation. In other words,they can trump the principle of

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