Regulations and Rules

Martineau and Butters v Matsqui Institution Inmate Disciplinary Board - (1977, 33 CCC (2d) 366 (SCC)

Editorial Note - For a further consideration of this issue reference should be made to the provisions of the Interpretation Act, RSC 1970, cl-23, which was referred to in argument before the Supreme Court of Canada but not referred to in any of the judgments. Also reference should be made to the provisions of the Statutory Instruments Act, SC 1970-71-72, c38 and to an article by H.N. Janisch entitled What is "Law'? -Directives of the Commissioner of Penitentiaries and Section 28 of the Federal Court Act -The tip of the iceberg of "Administrative quasi-legislation" (1977), 55 Can Bar Rev 576.

It should also be noted that once it was decided by the Supreme Court of Canada that the Federal Court of Appeal lacked jurisdiction to review this matter under s28 of the Federal Court Act, the applicant Martineau continued proceedings under s18 of the Federal Court Act before the Federal Court Trial Division for a writ of celtiorarior relief in the nature there-of. The trial division concluded it had jurisdiction to determine the matter ([1978] 1 FC 312, 37 CCC (2d) 58 (TD)) but on appeal the Federal Court of Appeal reversed ([1978] 2 FC 637, 40 CCC (2d) 325), and the matter was appealed further, once again, to the Supreme Court of Canada and was heard May 3. 1979, and judgment was rendered December 13, 1979, reversing the Court of Appeal and restoring the decision of the Trial Division. Although the question of the status of directives was raised again the court appears to reaffirm its earlier decision in this regard. This most recent decision of the Supreme Court of Canada in Maltineau (No.2) is now reported at (1979),50 CCC 353, 30 NR 119 (FCC).

To contrast the attitude of the courts towards disciplinary proceedings pertaining to prison guards, see Re Pollarri and Young (1980), 26 Nfld & PEIR 410,72 APR 410 (Nfld SC) in which such proceedings were characterized as at least quasi-judicial and that a failure to allow counsel in the circumstances amounted to a denial of natural justice. The court held that there is a right to counselor representation in judicial and quasi-judicial proceedings involving a person who has a right to be heard at those proceedings. The case contains an interesting dissertation with respect to the right to counsel before administrative tribunals, judicial and quasi-judicial tribunals and domestic tribunals. On the question of right to counsel generally, this case should be read together with the decision of the Federal Court Trial Division in Dubeau v National Parole Board -see annotation under s20 of the Parole Regulations.

Re Russell et al and Radley; Chairman, Collins Bay Penitentiaty Disciplinaty Gault - (1984) 11 CCC (3d) 289, 5 Admin LA 39 (FCTD)

See also, annotations under 539 of the Penitentiary Service Regulations.

Courchesne v AG Canada - (1984) 18 CCC (3d) 275 (Que CA)

Morin v The National SHU Review Committee et al - (1985) 20 CCC (3d) 123 (FCA)

Kelly v Canada (Solicitor General) et al - Unreported, February 13, 1992, No. T-2672-91 (FCTD) (Butterworths No. 36598)

37. (1) Regulations - The Governor in Council may make regulations
(a)	for the organization, training, discipline, efficiency, administration and good government of the Service;
(b)	for the custody, treatment, training, employment and discipline of inmates;
(c)	prescribing the compensation that may be paid pursuant to section 34, the terms and conditions in accordance with which the compensation is to be paid and the manner of its payment;
(c.1)	prescribing the manner in which an inmate applies for cancellation of a forfeiture of property under subsection 35(2);
(d)	defining the term "spouse" and the expression "dependent child" for the purposes of section 34;
(e)	for the collection, administration and distribution of estates of deceased inmates;
(f)	providing for the appointment by the Governor in Councilor by the Minister of a person to preside over a disciplinary court, prescribing the duties to be performed by that person and fixing that person's remuneration; and
(g)	generally, for carrying into effect the purposes and provisions of this Act.
(2) Punishment for contravention - The Governor in Council may, in any regulations made under subsection (1) other than paragraph (b) thereof, provide for a fine not exceeding five hundred dollars or imprisonment for a term not exceeding six months, or both, to be imposed on summary conviction for the contravention of any such regulation.
(3) Rules and orders of Commissioner - Subject to this Act and any regulations made under subsection (1), the Commissioner may make rules, to be known as Commissioner's directives, for the organization, training, discipline, efficiency, administration and good government of the Service, and for the custody, treatment, training, employment and discipline of inmates and the good government of penitentiaries. [RSC 1970 cP-6 s29; 1976-77 c53 s41, 44; RSC 1985 c35 (2nd Supp) s28]

*Judicial Consideration* -

Martineau and Butters v Matsqui Institution Inmate Disciplinary Board - (1977, 33 CCC (2d) 366 (SCC)
	- On appeal from a decision of the Federal Court of Appeal, [1976] 2 FC 198, which held that the Court had no jurisdiction under s28 of the Federal Court Act to review the decision of an inmate disciplinary board because the decision was one "of an administrative nature not required by law to be made on a judicial or quasi-judicial basis", the Supreme Court of Canada by a majority of 5-4 upheld the Court of Appeal's decision, but on the question of the legal status of Commissioner Directives issued pursuant to s29(3) the Court divided as follows:
	Pigeon J (Ritchie, Beetz and de Grandpre, JJ, concurring) concluded that it was significant that there is no provision for penalty (for breach of a directive) and that while authorized by statute they are clearly of an administrative and not a legislative nature. It is important to distinguish between duties imposed on public employees by statutes or regulations having the force of law and obligations prescribed by virtue of their condition of public employees. He concluded that the Directives are no more than directions to ordinary civil servants (in the Penitentiary Service) as to the manner of carrying out their duties in the administration of the institution in which they are employed. They consequently do not have the force of law.
	Judson J concurred separately and adopted the reasons of Jackett CJ in the Federal Court of Appeal whose judgment did not specifically deal with the legal status of directives although he did conclude that prison disciplinary decisions were not required to be made on a judicial or quasi-judicial basis "...even though they are required by administrative rules to be made fairly and justly." [1976] 2 FC 198 at 211.
	Laskin CJC (Martland, Spence and Dickson, JJ, concurring) on the other hand, refused to adopt this position which he characterized as "...much too nihilistic a view of the law for me to accept." He then went on to say as follows:
	"The absence of a penal sanction for the rules or directives can be no more compelling on whether law is involved (with a corresponding duty of obedience) than in the absence of a penal sanction in respect of rules of procedure governing the orders of other tribunals which are found by the Courts to be quasi-judicial bodies whose decisions are reviewable under s28(1) of the Federal Court Act. The reviewing court imposes a sanction by the very fact of review. Moreover, it is a fallacy to contend that rules or directives are less a matter of "Iaw" than are regulations whose breach is punishable. Rules of procedure of a tribunal are addressed to it and to those affected by the powers exercisable by the tribunal, and it would be odd, indeed, if a penal sanction was imposed upon tribunal members for failure to follow them. The sanction for obedience to them rests on the vulnerability of the tribunals decisions if made in disregard of its operating rules."

Editorial Note - For a further consideration of this issue reference should be made to the provisions of the Interpretation Act, RSC 1970, cl-23, which was referred to in argument before the Supreme Court of Canada but not referred to in any of the judgments. Also reference should be made to the provisions of the Statutory Instruments Act, SC 1970-71-72, c38 and to an article by H.N. Janisch entitled What is "Law'? -Directives of the Commissioner of Penitentiaries and Section 28 of the Federal Court Act -The tip of the iceberg of "Administrative quasi-legislation" (1977), 55 Can Bar Rev 576.
It should also be noted that once it was decided by the Supreme Court of Canada that the Federal Court of Appeal lacked jurisdiction to review this matter under s28 of the Federal Court Act, the applicant Martineau continued proceedings under s18 of the Federal Court Act before the Federal Court Trial Division for a writ of celtiorarior relief in the nature there-of. The trial division concluded it had jurisdiction to determine the matter ([1978] 1 FC 312, 37 CCC (2d) 58 (TD)) but on appeal the Federal Court of Appeal reversed ([1978] 2 FC 637, 40 CCC (2d) 325), and the matter was appealed further, once again, to the Supreme Court of Canada and was heard May 3. 1979, and judgment was rendered December 13, 1979, reversing the Court of Appeal and restoring the decision of the Trial Division. Although the question of the status of directives was raised again the court appears to reaffirm its earlier decision in this regard. This most recent decision of the Supreme Court of Canada in Maltineau (No.2) is now reported at (1979),50 CCC 353, 30 NR 119 (FCC).
To contrast the attitude of the courts towards disciplinary proceedings pertaining to prison guards, see Re Pollarri and Young (1980), 26 Nfld & PEIR 410,72 APR 410 (Nfld SC) in which such proceedings were characterized as at least quasi-judicial and that a failure to allow counsel in the circumstances amounted to a denial of natural justice. The court held that there is a right to counselor representation in judicial and quasi-judicial proceedings involving a person who has a right to be heard at those proceedings. The case contains an interesting dissertation with respect to the right to counsel before administrative tribunals, judicial and quasi-judicial tribunals and domestic tribunals. On the question of right to counsel generally, this case should be read together with the decision of the Federal Court Trial Division in Dubeau v National Parole Board -see annotation under s20 of the Parole Regulations.

Re Russell et al and Radley; Chairman, Collins Bay Penitentiaty Disciplinaty Gault - (1984) 11 CCC (3d) 289, 5 Admin LA 39 (FCTD)
	- This section and Regulation 31(1) constitute reasonable limits prescribed by law that are demonstrably justified in a free and democratic society within the meaning of s1 of the Charter on a prisoner's rights under s 11(d) of the Charter to the extent that in such disciplinary proceedings an inmate has no right to a public hearing because the opening of such proceedings to the general public would be seriously at variance with the requirements of s29 of the Act and s38 of the Regulations and those Commissioner's Directives that are applicable insofar as they aim to maintain the security of the institutions, and the custody, treatment and discipline of inmates. The security risk alone militates against the admission of the general public or journalists of whatever medium to such hearings.

See also, annotations under 539 of the Penitentiary Service Regulations.

Courchesne v AG Canada - (1984) 18 CCC (3d) 275 (Que CA)
	- The power of the Commissioner to make rules under s29(3) does not provide that the violation of these rules constitutes an offence and does not provide for a penalty. Penalties are only provided for violations of the Regulations passed by the Governor-in-Council under s29(1). S41(1)(b)of the Regulations provides for the offence of delivering or attempting to deliver contraband to a prisoner. A guard was convicted of two offences of delivering or attempting to deliver contraband but the prisoner, who was charged based on a Directive, was acquitted. A violation of a Commissioner's Directive does not amount to an offence.

Morin v The National SHU Review Committee et al - (1985) 20 CCC (3d) 123 (FCA)
	- The power to make regulations under s29 is vested in the Governor-in Council and not the Commissioner of Corrections and the Commissioner's unlimited power to delegate with respect to transfers must be understood to be limited by s40(1) of the Penitentiary Service Regulations. That latter regulation bestows the power of administrative dissociation upon institutional heads which are defined in regulation 2 to mean "the officer who has been appointed under the Act or these Regulations to be in charge of an institution and includes during his absence or inability to act, his lawful deputy. While the Governor-in-Council can, by regulation, delegate down, once such delegation has taken place, the person receiving the delegated power cannot delegate back up to the Commissioner. Consequently, the only legal authority with respect to transfers to Special Handling Units (SHU's) appears to be found in s40(1) of the Regulations which puts the responsibility squarely on the institutional director or his lawful deputy and Commissioner's Directives, while valid as internal directives binding penitentiary officials in relation to the internal discipline of the Correctional Service do not confer any legal authority in relation to inmates (or others outside the service) where they conflict with the regulations made by the Governor-in-Council. Furthermore, s14 of the Regulations clearly requires personal consideration and decision by the institutional head or his lawful deputy and an instruction from above could not substitute for such personal consideration and decision making.

Kelly v Canada (Solicitor General) et al - Unreported, February 13, 1992, No. T-2672-91 (FCTD) (Butterworths No. 36598)
	- Applicant applied for order of mandamus to command Commissioner of Corrections to get on with promulgation of a new and revised Commissioner's Directive 770 (CD 770) pursuant to s37(3) of the Penitentiary Act. CD 770 dealt with eligibility to use Private Family Visiting Home and had been under review for 2 years. Applicant (serving life imprisonment) did not meet criteria under existing CD 770 and wanted to see new CD in place as quickly as possible. Court held that it could not compel the Commissioner to act. Commissioner was acting lawfully and fairly; there was no duty to produce a new CD within a given time frame. There was no evidence that Commissioner was malicious or lax in any duty owed to applicant.
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