96. Regulations - The Governor in Council may make regulations

prescribing the duties of staff members;

for authorizing staff members or classes of staff members to exercise powers, perform duties or carry out functions that this Part assigns to the Commissioner or the institutional head;

respecting, for the purposes of section 22,

circumstances in which compensation may be paid,

what constitutes a disability,

the manner of determining whether a person has a disability, and the extent of the disability,

what constitutes an approved program,

to whom compensation may be paid, and

the compensation that may be paid, the time or times at which the compensation is to be paid, the terms and conditions in accordance with which the compensation is to be paid, and the manner of its payment;

respecting the placement of inmates pursuant to section 28 and their transfer pursuant to section 29;

providing for the matters referred to in section 70;

respecting allowances, clothing and other necessities to be given to inmates when leaving penitentiary either temporarily or permanently;

respecting the administrative segregation of inmates;

prescribing the contents of the notice to be given to an inmate under section 42, and the time when the notice is to be given to the inmate;

in connection with the disciplinary sanctions described in section 44,

prescribing the maximum of each of those sanctions, which maxima shall be higher for serious disciplinary offences than for minor ones,

prescribing factors and guidelines to be considered or applied in imposing those sanctions,

prescribing the scope of each of those sanctions, and

respecting the enforcement, suspension and cancellation of those sanctions;

providing for a review of the decisions of the person or persons conducting a disciplinary hearing;

providing for

the appointment of persons other than staff members to conduct disciplinary hearings or to review decisions pursuant to regulations made under paragraph (j), and

the remuneration and travel and living expenses of persons referred to in subparagraph (i);

prescribing the manner in which a search referred to in

paragraph (b) of the definition "frisk search" in section 46,

paragraph (b) of the definition "non-intrusive search" in section 46, or

paragraph (b) of the definition "strip search" in section 46 shall be carried out;

prescribing the procedures to be followed in conducting a urinalysis and the consequences of the results of a urinalysis;

prescribing the effect that a visitor's refusal to undergo a search can have on the visitor's right to visit an inmate or remain at the penitentiary;

respecting

the submission of reports referred to in section 67, and

the return or forfeiture of items seized under section 65 or subsection 66(2) or otherwise in possession of the Service;

prescribing limits on the entry into a penitentiary, and the use by inmates, of publications, video and audio materials, films and computer programs;

providing for inmates' moneys to be held in trust accounts;

respecting inmates' work and working conditions;

respecting penitentiary industry;

respecting the conducting of businesses by inmates;

prescribing an offender grievance procedure;

for the organization, training, discipline, efficiency, administration and good management of the Service;

providing for inmates' access to

legal counsel and legal reading materials,

non-legal reading materials, and

a commissioner for taking oaths and affidavits;

respecting inmates' attendance at judicial proceedings;

respecting the procedure to be followed on the death of an inmate;

prescribing the procedure governing the disposal of the effects of an escaped inmate;

for the delivery of the estate of a deceased inmate to the inma1e's personal representative in accordance wi1h the applicable provincial law;

prescribing the sources of income from which a deduction may be made pursuant to paragraph 78(2)(a) or in respect of which a payment may be required pursuant to paragraph 78(2)(b);

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;

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;

providing for remuneration and travel and living expenses of members of committees established pursuant to subsection 82(1);

for the involvement of members of the community in the operation of the Service;

prescribing procedures to be followed after the use of force by a staff member;

respecting the assignment to inmates of security classifications pursuant to section 30, which regulations must set out factors to be considered in determining the security classification of an inmate;

providing for the monitoring or intercepting of communications of any kind between an inmate and another inmate or other person, where reasonable for protecting the security of the penitentiary or the safety of persons;

respecting escorted temporary absences and work releases;

respecting the manner and form of making requests to the Commissioner under section 26 and respecting how those requests are to be dealt with;

imposing obligations or prohibitions on the Service for the purpose of giving effect to any provision of this Part;

prescribing anything that by this Part is to be prescribed; and

generally for carrying out the purposes and provisions of this Part.

[1992, c. 20, s. 96; 1995, c. 42, ss. 25, 72(F). ]

R v. Courchesne - (1984), 18 C.C.C. (3d) 275 (Que.C.A.)

- Under s29 of the Penitentiary Act the Governor in Council had the power to adopt regulations and it was implicit in the Act that violation of such a regulation constituted an offence. The Governor in Council could not delegate his power to make regulations to the Commissioner. While the Commissioner had the power to make rules, breach of such rules did not constitute an offence under the Act. In this case, while s41(1) of the Penitentiary Service Regulations prohibited the receiving of contraband from an inmate, contraband was defined in s2 of the regulations only as "anything that an inmate is not permitted to have in his possession". Hence, while there was a Commissioner's directive that prohibited the accused correctional officer from bringing a package of cigarettes inside the penitentiary for a inmate, and the accused knew about such a directive, the offence itself could not be based on the directive.

Bissonnette v. Canada (Commissioner of Corrections) - (1996), 122 F.T.R. 166, [1996] F.C.J. No.1388 (F.C.T.D.)

- This was an application for judicial review of the decision of September 5, 1996 of the respondent Warden, refusing his approval for the utilization of moneys from the Inmate Welfare Fund for the purpose of paying legal fees in another application for judicial review. In an April 1990 memorandum, the Commissioner interprets the relevant CD by asserting that moneys from the Inmate Welfare Fund cannot be utilized for the purpose of funding legal actions. Legal counsel for the CSC relied on this memorandum when she advised a colleague in January 1996 that it was not "legal under CSC policy for court challenges to be funded out of the Inmate Welfare Fund - with or without inmate consent." This legal advice was used to explain the Warden's refusal to authorize the use of the Inmate Welfare Fund for legal fees in this case. The court found that the policy objective of the Inmate Welfare Fund is broad. In the words of the CD, the fund exists for the purpose of contributing to the inmates' general welfare within the institution. In allowing the application, the court held that CD must be read and implemented within the framework of the CCRA and Regulations. In this case, the request to use the Inmate Welfare Fund must be considered by the Warden within the context of the CSC's obligation to ensure that every inmate has reasonable access to legal counsel as set out in section 96(w) of the Regulations. The assertion by the Commissioner in his memorandum of April 30, 1990 that "monies from the Inmate Welfare Fund cannot be utilized for the purpose of legal actions" is, at the very least, too broad as a blanket statement in light of the current Regulations. Similarly, there is no indication in the memorandum prepared by the CSC's legal counsel in January 1996 that any consideration was given to subsection 97(3) of the Regulations in formulating her opinion that the Inmate Welfare Fund could not be used to pay legal fees for this court challenge.

Crawshaw v. Canada (Deputy Commissioner of Corrections) - (1996), 125 F.T.R. 247, [1996] F.C.J. No.1553 (F.C.T.D.)

- An inmate was denied access by the CSC to a publication entitled the Prison News Service to which he subscribed. He filed a complaint and claimed violation of his rights under section 2(b) of the Charter. In response to his complaint, the inmate was advised that the denial of access was sanctioned by a Commissioner's directive which permitted such action where, as it was deemed in this case, the information contained in the periodical was inciteful and advocated the creation of adversarial climates in the correctional setting that were counter-productive to an inmate's rehabilitation. The CSC did not deny that its actions constituted a breach of the inmate's 2(b) rights under the Charter. Rather, they argued that those rights were subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" pursuant to section 1 of the Charter. In allowing the inmate's application, the court cited past case authority and held that pursuant to section 1 of the Charter, a person's Charter rights may only be subjected to a reasonable limit that is prescribed by law. A limit has the "force of law" if it is expressed or implied in a statute or regulation. By contrast, a CD does not have the "force of law," that is to say, a limitation that is prescribed in a CD is not "prescribed by law." The court recognized that the authority cited for the proposition that CDs are not "law" predates the enactment of the CCRA and more particularly sections 97 and 98 of that Act. However, the court was not satisfied that sections 97 and 98 of the CCRA in any way modify the status of CDs for the purpose of section 1 the Charter.

Nelson v. Canada (Commissioner of Corrections) - (1996), 112 F.T.R. 265, [1996] F.C.J. No.590 (F.C.T.D.)

- Based on the definition of the word "intercept", which, according to the Shorter Oxford English Dictionary (3rd Edition), is "to prevent, check, stop, hinder," the court held that section 96(z.7) of the Act, which allows "monitoring and interception" of communications, can be interpreted to include "prevention." Thus, the court found that Regulation 95(1), which allows the institutional head to prevent an inmate from communicating with a person by mail or telephone if certain conditions are present, was within the regulation making power granted under section 96 of the Act.

Laliberté v. Canada (Correctional Service) - (2000), 181 F.T.R. 276, [2000] F.C.J. No.548 (F.C.T.D.)

- Although the meaning of the word "visiting" has not been given, Parliament in s2 has defined the meaning of the word "visitor" as excluding other inmates and staff members. Since this definition is included in the Act it follows, by legislative hierarchy that the same definition applies to regulations adopted under the power conferred through s96 of the Act as well as to administrative directives adopted for the internal administration of penitentiaries.