| Galipeau
J. declared that sections 39(i.1) and 41.1 of the Penitentiary Service
Regulations did not satisfy the requirements of fundamental justice referred
to in section 7 of the Charter and were thus of no force and effect. According
to the Galipeau J., section 41.1 gave an officer or penitentiary employee
the absolute power to require a urine sample, even if the inmate did not
present any danger of committing discipline breaches or acts linked to
the absorption of intoxicants. This section did not contain the essential
elements of fundamental justice because it did not ensure an inmate of
protection against abuse by one of the members of the penitentiary service.
There was no requirement under the section that the employee act only
upon reasonable and probable grounds, making it arbitrary by nature. Arbitrariness
has always been, and will always be, contrary to fundamental justice.
The same went for section 39(i.1) because it did not qualify, in any fashion,
the prohibition that it imposes upon all prisoners, whoever they are,
in what circumstances they find themselves, and regardless of the nature
of the intoxicant that they consume or may consume, except where it is
authorized medication that is used in the directed manner. It is impossible
for an inmate to know the limits within which he may exercise his right
to liberty and to security of his person in that it does not establish
perimeters which allow him to foresee at what moment he runs a risk proportional
to his fault. A total prohibition of intoxicants, without specifying the
reason, becomes arbitrary. Thus, section 39(i.1) exhibited the same arbitrary
characteristic that is reproached in section 41.1. |
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