PENITENTIARIES |
Royer v. Canada (Attorney General)
A-17-02
2003 FCA 25, Décary J.A.
21/1/03
13 pp.
Issue on appeal legality of Corrections and Conditional Release Regulations (Regulations), s. 71, providing inmate found guilty of certain disciplinary offence may be required to provide urine sample each month until three consecutive negative monthly samples provided--On September 22, 2000, appellant inmate asked to submit to urinalysis as part of random selection urinalysis program under Corrections and Conditional Release Act (Act), s. 54(b)--Urinalysis must be authorized by legislation, Parliament must ensure not unreasonable--According to respondent, Regulations, s. 71 authorized by Act, s. 96(m), providing regulations may be made prescribing procedures to be followed in conducting urinalysis, consequences of results of urinalysis--Act, s. 96(m) not giving Governor in Council power to order urine sample be given, regulate refusal to provide sample, create new offence, impose sanction, define consequences of sanction--In this context, Regulations, s. 71 constituting sanction or consequence of sanction not authorized by Act, s. 96(m)--Requirement imposed therefore not consequence of result of urinalysis within meaning of Act, s. 96(m), but consequence of finding of guilt--S. 71 creating by implication new offence: refusing to provide urine sample demanded under this section --Not specifying who must authorize search or who must conduct it--However, Parliament, Governor in Council expressly stating in Act and Regulations who may exercise these powers--Moreover, s. 71 not specifying what procedural safeguards available to inmate--Even accepting safeguards would by implication be same as Act and Regulations providing elsewhere, unable to know which ones applying, because varying according to section of Act under which search conducted--Odd if Parliament intended refusal to provide urine sample demanded under ss. 54, 55 constituting particular offence, but Governor in Council by implication permitted to make another type of refusal offence not of refusal but of disobedience--Conclusion inescapable, Regulations, s. 71 ultra vires enabling legislation--Appeal allowed, Regulations, s. 71 declared ultra vires--Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 54(b), 55 (as am. by S.C. 1995, c. 42, s. 15), 96(m)--Corrections and Conditional Release Regulations, SOR/92-620, s. 71.